There are two key changes to employment legislation that both employers and employees need to be aware of. These are the new rules around trial periods for employers with 20 or more staff and the provision of domestic violence leave for all employees.
From 6 May 2019, the rules regarding trial periods for employees has changed. Only employers with 19 or fewer employees may employ someone new on a trial period for their first 90 calendar days of their employment. Employers with 20 or more staff members will need to remove any provision for a trial period from their employment agreements. Any new employee should check their employment agreement carefully before signing.
One alternative is to introduce probationary periods for staff members. A probationary period, like a trial period, needs to be recorded in writing in the employment agreement and must be for a reasonable length of time taking into account the relevant circumstances.
The probationary period is a way of assessing a new employee’s skills while retaining the ability to terminate employment if the employee is not showing the ability to work well for the business. A probationary period does not give an employer free rein to simply tell the employee to leave the job at the conclusion of the probationary period. It requires a fair assessment by the employer and reasons must be provided why the standard of work has not met the required level. Employers will also need to provide an opportunity for employees to respond to this. Unlike a trial period there is no automatic defence for a personal grievance. The employer must have good reasons as an employer and show that you have provided appropriate advice and training, on how to do the job effectively, in order to minimise the risk of a successful personal grievance claim.
Domestic Violence Rights
The rules around support for employees affected by domestic violence came into effect on 1 April 2019. There are two key aspects of the domestic violence legislation to take note of.
Flexible Working Arrangements
Employees affected by domestic violence may request a short term (up to two months) variation of their working arrangements. This could include a variation of location, hours of work, duties, extent of contact details being provided to the employer or any other related help. An employer may refuse such request if there is no evidence of domestic violence provided or if it cannot be reasonably accommodated by the business due to a range of reasons including the inability to reorganise work among existing staff, a detrimental impact on quality, or a detrimental effect on the ability to meet customer demand.
Domestic Violence Leave
An employee affected by domestic violence may take up to ten days domestic violence leave in a twelve month period, after six months of continuous service. There are similarities with sick leave and that if an employee is on annual holidays and becomes entitled to domestic violence leave, then the domestic violence leave will take precedence over annual leave and an employer may ask for proof of reasons for domestic violence leave. There is very little commentary on what proof looks like at this stage. Domestic violence leave can be for the employee affected or for a child under their care.
If you would like further information on any of these changes or assistance with updating your employment agreements please get in contact with Michael O’Flaherty, Associate Michael@mmlaw.co.nz or on 03 3438 587.