Earlier this year, owners of the 3 Kings restaurant in Auckland, Luisito and Virgil Balajadia were sentenced to 26 months in prison and eight months home detention respectively for their treatment of their Filipino employees. That ruling was upheld recently by the Court of Appeal. The worker’s conditions were reported as being akin to modern day slavery. I am sorry to say that we are coming across employment situations in the Wairarapa that are comparable to the Auckland case. Abuses typically include being made to work very long hours and weekends, with inadequate rest breaks, but only being paid for a 40-hour week, and sometimes not being paid at all.

Some workers are brought to New Zealand believing that they are beholden to their employer. Immigration New Zealand, rather oddly in my view, issues certain types of work visas that attach to a particular workplace, rather than to a type of role. This means that any breakdown in relationships between employer and employee can threaten the worker’s immigration status. The worker cannot simply look for the same type of work with another employer when things go wrong. This gives the employer breath-taking power over their migrant workers. There will always be those who abuse power and when they do, workers can be caught in horrific situations feeling they have no way out. Migrant workers often do not know their rights, who to turn to for help, and who they can trust. It is a frightening situation.

Employment New Zealand is part of the Ministry of Business Innovation and Employment. Within Employment New Zealand is a Labour Inspectorate. The Labour Inspectorate works to ensure that employers comply with minimum standards set down in legislation and it has quite broad powers. It seems that the Inspectorate is currently taking a strong interest in potential abuses of migrant workers. An individual caught in an abusive work situation will usually need their own representative for parts of the matter. Labour Inspectors don’t give advice about general parts of disputes, certain contractual matters contained in employment agreements, or pay rates except minimum wage. We are encountering clients who are not sure who is on their side and who they can trust. We are fortunate here in New Zealand, that you cannot buy the favour of a judge or a Labour Inspector, and employment lawyers and advocates do not collude against the interests of their clients.

If you are caught in an abusive work situation, or you know of any such abuses, the Labour Inspectorate is the right place to complain to at first instance. You can trust that any lawyer or advocate you engage will act only for you, and if the Police become involved, they too will act only to uphold the law.

In Law

Employees are entitled to ask for flexible work arrangements. Flexibility can be about days of work, hours of work, or place of work. Other arrangements might include part time work, job sharing, and shift work. Employers have a duty to consider any request for flexible working arrangements. This means that if an employee puts a request in writing, an employer must consider it, and respond in writing, within a month at the latest. Employers do not have to agree to any request for flexible arrangements, but they must give due consideration and proper reasons for declining a request.

In Practice

Employment Agreements quite commonly provide for more generous terms and conditions than are set down in the relevant legislation. Regardless of the legislation or agreement, many employers are, and always have been, naturally inclined to allow as much flexibility as they practically can. Flexibility allows employers to recruit higher caliber staff and reduce absenteeism, as well as improving staff morale, loyalty, and retention. Most managers and employers, recognise that even if flexible arrangements are not formalised, staff have family commitments, they have to go to doctors, dentists, and such, and they cannot easily attend to such things outside normal work hours. Many employees show great commitment and loyalty to their employers, working long hours and going the extra mile. There is naturally occurring give and take in good work relationships.

In practice, a few employers and managers are unable to cope with flexible work arrangements. For those employers and managers, arrangements flex only in their favo

ur. The employee can work as many hours in a day as they like, provided they always work more than 8 hours a day. They can work from home as much as they like, provided they have spent at least 40 hours per week in the office, and they can work as many days of the week as they like, provided it is always more than five. Even when flexible arrangements are formalised in writing, those sorts of personalities are unlikely to show the good sense and good faith necessary to make it work.

The press and social media are bloated with reports of Harvey Weinstein and his ilk. I do not want to write about sexual harassment and other sexual misconduct. That is about power, domination, and unjustified entitlement, unlike most close relationships that can occur in the workplace.

Employment law traverses the human experience in much the same way as family law. There is love, hate, friendship, jealousy, ambition, success, failure, and defeat. All those sorts of feelings and events impact workplaces.

There is a wealth of research on the topic. It shows that most people have experienced an office crush, or work romance, or have worked with related family members, close friends, or couples, at some time in their careers. This level of closeness is not surprising, especially here in New Zealand, with our small population and small towns and cities. We attach ourselves to one another, and rightly so.

What employers worry about most is, what to do when things go wrong in such relationships, and the power imbalance that might occur in close relationships between senior and subordinate employees. What employees worry about is, whether there will be favoritism and disadvantage stemming from such relationships.

Larger employers are increasingly introducing policies around office romances and other close relationships. Most importantly, such relationships should be declared and acknowledged so that conflicts of interest can be avoided. Employees might well wonder if they are being disadvantaged if one member of a close relationship is carrying out the other’s annual performance review, for example. A good policy will describe processes for avoiding such conflicts of interest.

When close relationships break down to the extent that they are affecting the workplace, it becomes a performance issue and should be managed as such. Performance management usually starts with discussions designed to help the employee improve their performance. The employee may need to be moved to a different team or area of work if that would help diffuse the situation. Expectations should be set down. If matters are not resolved or become nasty, then disciplinary action may need to be taken.

Employers need to recognise that close loving relationships do exist in the workplace, and some begin and blossom there. I worked recently for a family owned business with a branch office in Masterton. While I worked there, there was among the staff, a couple in a permanent relationship, several closely related family members, and a number of long standing staff members with close and abiding friendships. It was one of the most pleasant and collegial place I have ever worked. That was in no small part, because those relationships were acknowledged, respected, accepted, and well managed. They need to be. They are a fact of life.

https://www.facebook.com/CWEmploymentLaw/photos/a.1909968412653857.1073741828.1908988699418495/1925461997771165/?type=3&theater

TVNZ One News posted the following article. It seems clear that the workplace law changes proposed by the Labour government will provide grist for the political mill in the next while.

Business leaders are bracing for impact after the government has made workers' rights a priority in its 100 day plan.

Under the government's new plan, employers will no longer be able to walk away from union negotiations until an agreement is reached, the minimum wage will be increased to $16.50 per hour by April and the controversial 90 day trial will be overhauled.

Minister for Workplace Relations Iain Lees-Galloway is defending the changes.

"We do want to make some changes to 90 day trials because under their current settings, they remove all rights for workers during that trial period.

"There is a role for trials and probation periods for employers to give workers a go. What we want to restore is some fairness and some natural justice so that workers aren't completely devoid of any rights at all during those trial periods," Mr Lees-Galloway says.

A mediation service will allow workers to challenge a 90 day dismissal and may be awarded compensation of up to $5000 and reinstatement.

However, Business New Zealand’s Kirk Hope says the compensation could see fewer people be given a chance at a job.

"Those changes again create uncertainty for businesses. The 90 day trial period was working. Eighty per cent of employers that we surveyed had used it and had continued to employ those people.

"Changes by way of mediation fees will be, you know, we'll have to see how that plays out. We'd like to see lower fees rather than higher," he says.

Tullett & Tokyo Liberty, a brokerage firm in Britain had an office tradition, that if a staff member turned up late for work, they were given a fancy-dress costume to wear. The wardrobe of costumes had been assembled to reflect and lampoon the personal characteristics of the staff. A Welsh employee had to wear a Bo Peep costume, a Northern Irish protestant employee had to dress up like the Pope, and a Jewish employee was given a Nazi costume to wear, and had to place a yarmulke (skull cap) on top of the office TV whenever a Jewish person appeared on CNN.

Unsurprisingly, the Jewish employee, Laurent Weinburger raised a grievance. The firm claimed that the practice was merely light-hearted fun and that the employee had not been singled out.

Clearly, these employees had strong grounds for complaint. I like to think very few New Zealand employers and managers would allow office banter to become so distasteful. But, how far is too far? It does depend on the nature of the workplace. Workplace banter that would be fine in a forestry or shearing gang would probably not be fine in a bank or government department. Staunch robust banter can make a workplace more collegial and welcoming. By contrast, overly genteel and prudish workplaces can be deeply oppressive. It is not the banter itself, it is the way it is making people feel that matters most. If some staff are not enjoying the joke, appear discomforted, or avoid the situation, there is probably a problem. Things are much less likely to get out of hand when a workplace has a culture where people feel confident, safe, and able to speak up for themselves and others.

When someone reports an incident of harassment or bullying, it is essential that the complaint receives respectful and prompt attention. Swift action is called for if an employer wishes to minimise risk and damage, should the complaint prove well founded. Under the Health and Safety legislation, bullying is considered to be a health and safety risk. Worksafe NZ has this to say, anyone conducting a business "must ensure, so far as is reasonably practicable, the health and safety of workers, and that other persons are not put at risk".

Tullett & Tokyo Liberty ended up paying Mr Weinburger more than £100,000 in an out-of-court settlement and it suffered colossal reputational damage along the way. Whilst NZ settlements do not reach such dizzy heights in dollar terms, the penalties for breach are considerable, and now extend to officers such as company directors and chief executives. Having appropriate policies and procedures in place to mitigate and manage risks, and reviewing them regularly is a good place to start.

Bullying is intolerable. Do not tolerate it. If you are an employee being bullied and you have gained no traction by raising it through proper channels at work, seek professional help. I like to think that there are few in employment law who would not feel privileged to act for you in such circumstances.