Latest / Best of Business / Gareth Abdinor: Director of Abdinor Employment Law on the challenges that come with return-to-office mandates

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Gareth Abdinor: Director of Abdinor Employment Law on the challenges that come with return-to-office mandates · Best of Business

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  Speaker 1: You're listening to a podcast from newstalksed be follow this
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  Speaker 1: and our wide range of podcasts now on iHeartRadio.
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  Speaker 2: Gareth abden Or. He is the founder and director of
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  Speaker 2: abden Or Law. He is an employment, workplace and information
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  Speaker 2: expert and is a great friend of the show and
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  Speaker 2: it's a pleasure to welcome in for the first time
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  Speaker 2: in twenty twenty five.
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  Speaker 1: Gareth.
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  Speaker 3: Good afternoon, Good afternoon. It's great to be here, guys.
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  Speaker 2: Well, great to chat. Has it been a busy start
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  Speaker 2: to the year for you, Gareth, I understand there's quite
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  Speaker 2: a few changes happening in employment law as the year progresses.
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  Speaker 3: Yeah, there's lots of changes, and I think with the
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  Speaker 3: economy taking a bit of attention, people really want to
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  Speaker 3: keep their jobs and there's a lot of restructuring going
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  Speaker 3: on and lots of work, that's for sure.
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  Speaker 2: Absolutely absolutely. Now you know the drill. If you've got
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  Speaker 2: a question for Gareth, O wait one hundred and eighty
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  Speaker 2: ten eighty. If you've got any issues in your workplace,
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  Speaker 2: he is the man to chat to. And indeed, if
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  Speaker 2: you run the company or the boss and you've got
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  Speaker 2: some issues with your workers, he's great to check to.
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  Speaker 2: As well, Gareth, we've already got texts coming through, so
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  Speaker 2: we'll kick into them pretty quick.
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  Speaker 3: Yeah sounds good.
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  Speaker 4: Hey, a question for you. My work was all remote
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  Speaker 4: then I joined my current firm. When I joined my
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  Speaker 4: current firm, they now want us back in the office
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  Speaker 4: two of five days every week, and to make up
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  Speaker 4: those office days even when we take leave. I would
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  Speaker 4: like to request a change to my working arrangements to
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  Speaker 4: the prior status quo as per Employment Relations Act two thousand,
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  Speaker 4: Parts six AA flexible working, And don't think they can
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  Speaker 4: point to any exemption as per six nine AAF the legislation.
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  Speaker 4: Can they sanction me for asking for this variation?
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  Speaker 3: Eg?
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  Speaker 4: Refuse bonus payments, etc. Thanks?
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  Speaker 5: Boy?
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  Speaker 3: There's so much in that one, isn't there? I guess
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  Speaker 3: summarizing a lot of businesses went fully remote during COVID,
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  Speaker 3: and now they've seen that that comes with a whole
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  Speaker 3: lot of downsides and there's a lot of pressure for
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  Speaker 3: people to return to the office. You don't have to
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  Speaker 3: be a genius to work out that if everybody's working
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  Speaker 3: from home, it's so much more difficult to train junior staff.
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  Speaker 3: Mental people include people on meetings and discussions and often
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  Speaker 3: say you learn a lot through osmosis listening and what
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  Speaker 3: the person next to you is saying on the phone.
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  Speaker 3: So there's a lot of pressure for people to go
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  Speaker 3: back to the office. Very difficult to answer the coolest
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  Speaker 3: questions because it is so fact dependent. Now, if you
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  Speaker 3: got the job and it's said that your work would
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  Speaker 3: be remote, the employer would have to consult with you
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  Speaker 3: and essentially do a restructure before they could force you
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  Speaker 3: back to the office. You know, as I've said for
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  Speaker 3: years and years on the show, that you need to
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  Speaker 3: be very careful in such ways like this, because yes,
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  Speaker 3: you may have legal options open to you, but do
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  Speaker 3: you want to be the nail that sticks up because
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  Speaker 3: you might get smacked down?
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  Speaker 2: Good analogy.
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  Speaker 3: Yeah, you know, if you're really difficult when times are tough,
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  Speaker 3: you might be the first one out the door when
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  Speaker 3: there's a restructure. So I think there's a fine line
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  Speaker 3: to be walked here. Yes, definitely you can ask for
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  Speaker 3: flexible working arrangements. Your employer has to consider that in
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  Speaker 3: good faith, but they don't have to agree.
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  Speaker 4: Okay, we're talking to employment lawa of Gareth abdan Or
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  Speaker 4: from Admoral Law. John, You've got a question for Gareth John.
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  Speaker 2: Yeah, Hello, Yeah, now you're on with Gareth. John, what's
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  Speaker 2: your question.
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  Speaker 6: We've recently been taken over by another company. In it
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  Speaker 6: the new company has taken us on your old terms
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  Speaker 6: and individual agreements.
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  Speaker 3: Yep.
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  Speaker 6: This issue coming out is that based on a salary
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  Speaker 6: for forty hours a week and any time anyhow overtime
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  Speaker 6: work over and above it was taken off as pay
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  Speaker 6: paid leave right. But in our individual agreement it says
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  Speaker 6: that there'll be no overtime paid over and above forty hours.
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  Speaker 3: Yeah, and that's not not an unusual situation. John. You
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  Speaker 3: may have an argument here that the arrangement with your
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  Speaker 3: previous employer became part of your employment agreement. But I
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  Speaker 3: think where there's a new employer, what's in the contract
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  Speaker 3: is likely to be what's what they're going to stick to.
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  Speaker 3: So you can give it a go. But I wouldn't
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  Speaker 3: be I wouldn't be digging my heels in too much
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  Speaker 3: on that one.
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  Speaker 2: Hopefully that John, Thanks very much for your phone call,
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  Speaker 2: So just on there, Gareth. So, if you're part of
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  Speaker 2: a company and it gets sold to a new buyer,
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  Speaker 2: new owner, do your contracts still remain in place or
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  Speaker 2: at that point do you start with new contracts.
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  Speaker 3: Yeah, it really depends on whether it's a sheer purchase
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  Speaker 3: or a purchase of the assets of the business. What
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  Speaker 3: normally happens is there's a new employment agreement with the
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  Speaker 3: name of the new employer, and often there slight changes
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  Speaker 3: to the terms of employment, so there might be changes
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  Speaker 3: to benefits, and often there changes to things like this
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  Speaker 3: the hours of work. You know, as I said before,
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  Speaker 3: times are tight, and I think if you're on a
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  Speaker 3: salary that kind of comes with the arrangement that sometimes
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  Speaker 3: you're going to have to work over your forty hours.
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  Speaker 5: Yeah.
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  Speaker 2: Interesting. We're joined by Gareth Abden or Director of Abden
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  Speaker 2: or Employment Law, taking your questions about any issues you're
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  Speaker 2: having at work or if you run the company, any
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  Speaker 2: issues that you've got with your employees. Plenty of techs
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  Speaker 2: coming through Gareth yees.
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  Speaker 4: So here goes one. We went out with the new boss.
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  Speaker 4: He paid for the first two rounds. Yes, he called
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  Speaker 4: it a get to know me post work meeting that
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  Speaker 4: we had to attend. After two we started paying for ourselves.
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  Speaker 4: Things took off, a glass got broken. He comes back
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  Speaker 4: over from his mates and tells us we all got
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  Speaker 4: to go home. Saying, because he paid for the first beers,
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  Speaker 4: he is responsible for us. We told him to If
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  Speaker 4: off he's still angry, can your boss kick you out
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  Speaker 4: of a pub? Aren't we in charge of our own
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  Speaker 4: lives after we're off site. This seems a lot behind.
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  Speaker 2: That great text.
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  Speaker 3: Oh man, I don't even know where to start with
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  Speaker 3: this one. I guess the first thing is, yeah, maybe
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  Speaker 3: don't tell your boss to ef that it's career limiting.
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  Speaker 3: Good advice. I think that's the advice of the day.
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  Speaker 3: It's really tricky these days, and I don't think it
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  Speaker 3: was a great idea for the boss to take people
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  Speaker 3: out to a pub if there weren't clear expectations in
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  Speaker 3: the beginning. These days, employees aren't treated like adults often,
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  Speaker 3: and employers aren't allowed to do the sort of things
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  Speaker 3: that they used to be allowed to do, And so
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  Speaker 3: we see a lot of Christmas parties being canceled parties,
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  Speaker 3: if you can call it that, with no alcohol. So
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  Speaker 3: this situation is a recipe for disaster. I think these
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  Speaker 3: employees should be quite lucky that they're not facing disciplinary action,
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  Speaker 3: and I think everybody should just chalk it up to
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  Speaker 3: a bad idea and try and forget about it.
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  Speaker 4: So if you're in a location so you've been out
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  Speaker 4: with the boss though, and the party initially starts there,
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  Speaker 4: and if the boss clearly goes it's over. Now those
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  Speaker 4: few two bears and it sounds like he's over at
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  Speaker 4: another table because he says he came over from his
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  Speaker 4: other mates, so I'm not sure if he did this,
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  Speaker 4: But he goes, that's over. That was the drink, that
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  Speaker 4: was the get together we wanted to have. I'm not
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  Speaker 4: paying for any more drinks. He goes over to another table.
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  Speaker 4: His employees still his responsibility at that point, or has
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  Speaker 4: he shut down the function even though they're both still
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  Speaker 4: in the same establishment.
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  Speaker 3: Yeah, I think the risk is that there's a reasonably
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  Speaker 3: high risk that if anything goes wrong, the venue will
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  Speaker 3: blame it on the company, and the employees could claim
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  Speaker 3: that it was still a work event. It started as
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  Speaker 3: a work event. Alcohol was provided. You know, best practice
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  Speaker 3: in a situation like this would be to say we're
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  Speaker 3: going to go out, we're going to have a couple
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  Speaker 3: of drinks, and then everybody leaves. Then if you go
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  Speaker 3: to a different venue without your boss, I think everybody's
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  Speaker 3: on much safer territory. But the fact that stayed in
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  Speaker 3: the same pub. Yeah all round.
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  Speaker 2: Yeah, don't tell your boss to number one.
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  Speaker 4: I like it says we told the boss.
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  Speaker 3: It sounds like there was an insurrection.
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  Speaker 4: Siah. You've got a question for Gareth, right.
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  Speaker 1: Yeah.
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  Speaker 5: I work in sales and quite any specialty, and I
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  Speaker 5: believe I've got quite an intense restraint of trade in
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  Speaker 5: my contract so that they can stop me working for
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  Speaker 5: a competitor for twelve months. How unenforceable is that in
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  Speaker 5: New Zealand.
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  Speaker 3: Yeah, that's a fantastic question, Sarah. There's this idea out
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  Speaker 3: there that restraints aren't enforceable and that's not correct. And
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  Speaker 3: then there are some pretty owner restraints in employment agreements
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  Speaker 3: that clearly go too far. So the test that the
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  Speaker 3: court will look at is it reasonable and is it
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  Speaker 3: necessary to protect a legitimate interest that your employer has.
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  Speaker 3: If you're in a niche role and you've got relationships
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  Speaker 3: with suppliers, relationships with customers, and it would take a
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  Speaker 3: long time for them to protect those and you could
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  Speaker 3: take advantage of them, potentially that restraint could be enforceable,
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  Speaker 3: but it really comes down to the particular circumstances of
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  Speaker 3: each case. Twelve months is definitely at the upper end
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  Speaker 3: of what would be considered reasonable. Generally, three months is reasonable,
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  Speaker 3: six months is starting to get up there, and twelve
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  Speaker 3: months is at the extreme end. But there are cases
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  Speaker 3: where twelve months has been found to be reasonable.
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  Speaker 2: Take care, thanks Sarah. Just on that twelve months, I mean,
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  Speaker 2: would there is there sometimes a caveat or part of
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  Speaker 2: that deal that they pay you out something so that
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  Speaker 2: at least you can survive for that twelve months.
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  Speaker 3: And often those extended restraints only apply to people on
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  Speaker 3: relatively good incomes. As I say, twelve months is quite extreme,
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  Speaker 3: and that can't prevent you from working full stop. It
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  Speaker 3: will just prevent you from working in a way that
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  Speaker 3: would be unfairly competing with your previous employer.
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  Speaker 4: What can the previous employer do?
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  Speaker 3: Though they can file proceedings, they can seek an injunction,
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  Speaker 3: so the court could actually issue an injunction preventing you
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  Speaker 3: from from doing whatever it is that's in breach of
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  Speaker 3: the restraint. Generally, these things are resolved before that point
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  Speaker 3: because once it goes to court, everybody lose. Accept the lawyers.
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  Speaker 6: Yeah, yeah, interesting.
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  Speaker 3: You know, with a restraint like that, I think it's
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  Speaker 3: a very good idea to get some legal advice, so
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  Speaker 3: you know where you stand.
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  Speaker 2: Yeah, great stuff. Good afternoon. We're joined by Gareth Abdenor,
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  Speaker 2: who is the founder and director of Abdenor Law. You
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  Speaker 2: can check him out Abdenorlaw dot z. He's brilliant and
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  Speaker 2: he's taken your questions. Josh, good afternoon.
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  Speaker 7: Yeah, hey guys, heye, Gareth. My question is I resigned
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  Speaker 7: from a position late last year and what I did
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  Speaker 7: after I left, I went to make contact with previous
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  Speaker 7: managers that I worked under, and so from working with
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  Speaker 7: them previously, I asked if it would be okay if
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  Speaker 7: I use them for future for a future reference will work.
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  Speaker 7: At that point they said, yeah, that's that's fine. When
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  Speaker 7: I actually resigned, I had a new area manager come
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  Speaker 7: in and that was one of the reasons why I
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  Speaker 7: thought I'm out of here. I'm just I'm going and
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  Speaker 7: this particular person who only just gained that position, this
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  Speaker 7: person's actually gone to these people who I used to
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  Speaker 7: work for, and it has asked them not to supply
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  Speaker 7: any references.
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  Speaker 2: It's a big one. And sorry, Josh, we're almost running
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  Speaker 2: out of time. But Gareth, can they do that?
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  Speaker 3: Yeah, they most probably can. An employer is under no
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  Speaker 3: legal obligation to provide you with a reference. They do
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  Speaker 3: need to confirm that you work there, but they don't
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  Speaker 3: have to provide you with a reference. And a lot
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  Speaker 3: of businesses have a policy not to provide references and
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  Speaker 3: only to provide certificates of service. So yep, potentially they
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  Speaker 3: could they could do this.
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  Speaker 2: Yeah, very good, Gareth, great to catch up again. I
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  Speaker 2: thank you very much as always, and there's plenty of
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  Speaker 2: texts and phone calls the get to next time you're on,
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  Speaker 2: so we'll catch you in a month's time.
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  Speaker 3: Fantastic, Thanks guys, brilliant.
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  Speaker 2: That is Gareth Abdenor, founder and director of abden Or Law.
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  Speaker 2: You can check them out Ebdenorlaw dot in z.
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  Speaker 3: And that is us for today.
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  Speaker 4: Yeah, give them a toast of key.
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  Speaker 1: We talk tomorrow for more from News Talk st B.
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