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LegalCare News December 2013

LegalCare News December 2013

Author: SuperUser Account/Wednesday, December 18, 2013/Categories: LegalCare news

Thank you for your continued loyalty and support over the past year. We wish you a very Merry Christmas and Happy New Year. Our offices are scheduled to close over the holiday period from Friday 20th of December until Wednesday 15th of January 2014. If you require our assistance during this time, please contact: Rick on 021 726 510 and Lianne on 021 726 511

 


INSIDE THIS EDITION:

1. THE 90 DAY TRIAL PROVISION

2. CHANGES TO THE HEALTH AND SAFETY ACT

3. SCAMMING


 

1. THE 90 DAY TRIAL PROVISION

The Employment Relations Act 2000 (ERA) specifies a key provision which allows employers to implement a 90 day trial period into their employment agreements. Once effected, employers can terminate their agreements provided that the correct procedure is followed.

It is important to seek legal advice in relation to newly arising employment agreements. If any aspect of the process is found to be invalid, the trial period could be void. Section 67A of the ERA and previous cases provide some key guidelines which should be followed in order to avoid an unenforceable trial period.

IMPLEMENTING THE TRIAL PERIOD

While trial periods are voluntary, they must be specified in writing and incorporated into the employment agreement. Verbal agreement alone is not sufficient. To be valid, the agreement must include an appropriate trial period clause stating that for a specified period (not exceeding 90 days) starting at the beginning of the employee’s employment, the employee is to serve a trial period. During the trial period, the employer may dismiss the employee and the employee is not entitled to bring a personal grievance or other legal proceedings in respect of that dismissal.

OBLIGATION OF GOOD FAITH

Termination under the 90 day trial period requires the same obligation of good faith that applies in an ordinary dismissal. The employer must ensure that the dismissal is substantively justified and carried out in a procedurally fair manner. Reasonable notice must be given. It is not sufficient to wait for the trial period to expire before providing notice to the employee.

TIME OF NEGOTIATION

It is essential that the employment agreement, with the incorporated trial provision, be signed prior to the employee commencing work. Many employers either fail to incorporate the trial provision into the agreement, or simply fail to do so at the correct time. For this reason, it is recommended that the trial period be negotiated at the time of the interview, before the offer of employment is made.

While the idea of a trial period sounds highly convenient and advantageous for the employer, it is not as simple as it seems. For this reason, it is important to seek legal advice before proceeding with trial period implementation or dismissal.

 

2. CHANGES TO THE HEALTH AND SAFETY ACT

2013 brings a turning point for workplace health and safety in New Zealand. The current legislation has been in place for over 20 years. Therefore, it is not surprising that the recent Pike River tragedy and Christchurch earthquakes have prompted an overhaul. Recommendations from the Royal Commission on the Pike River tragedy and the Independent Taskforce on Workplace Health and Safety have been the spark for change in this sector. The first of these changes is the Health and Safety (Pike River Implementation) Bill, set to be introduced in December 2013. With it, we can expect a fundamentally different legal framework to come into force in late 2014.

THE PROPOSED CHANGES

The current Health and Safety in Employment Act 1992 will be repealed and replaced with a new Health and Safety at Work Act. Those in governance roles will be placed under a new duty of “due diligence” with a focus on risks, not hazards. The Act will seek to cover alternative working relationships, with a core duty extending past the employer-employee relationship to include contractors and volunteers. The Government says that the Act will provide clear, consistent information for business, workers and government on what they need to do to keep workers and others safe.

Regulations and guidelines are to be accompanied by a range of new enforcement mechanisms including stronger penalties, stronger court powers, and a cost recovery mechanism for prosecutions.

A new Crown Entity, Worksafe NZ, is set to start operating from December 2013. The new Health and Safety Agency will replace the existing group which operates as a part of the Ministry of Business, Innovation and Employment. The aim is that as an independent and properly funded body, the Agency will be better equipped to effectively develop, promote and enforce safety standards in New Zealand. Worksafe is set to play the lead role in delivering reform in the health and safety at work sector.

WHAT CAN WE EXPECT?

With the improved legislation, regulations and Approved Codes of Practice expected to come into force by late 2014, we can anticipate a fundamentally different outlook on health and safety in the workplace. The aim of the Government is to reduce the rate of fatalities and injuries in the workplace by at least 25 percent by 2020. With this as the goal, we are seeing the most significant reform of New Zealand’s workplace health and safety system in 20 years.

 

3. SCAMMING

 

If you have recently received an email stating that you have been left $10,000,000 by a long lost relative, chances are you are not about to become a millionaire. More likely, you are about to become the target of a well-devised scam. These emails sound entirely legitimate and claim thousands of victims each year.

The internet is quickly becoming one of the most expansive units of information and communication. What many people are unaware of is the certain element of vulnerability that comes with it. Scams are the perfect example of this, finding their way through mediums such as text, online, phone, postal, and email. The scammers will usually have a number of unaltered fact scenarios which are sent out to targeted people. The only thing that changes is the names contained in the scam. These are often legitimate people, companies and addresses.

While email scams seem to be infiltrating the net, the monopoly is actually coming from Nigeria. The most common form (advance-fee fraud), has gained a name as the Nigerian 419 Scam. The target is persuaded to put forward relatively small sums of money with the hope of a much larger gain. The typical letter comes from a person needing to transfer large sums of money out of the country, often in the form of an unclaimed inheritance, foreign lottery or ransom money. The deal is that if you put forward a small sum, the entire sum will later be distributed between yourself and the scammer.

New Zealand companies are also told to take caution. The Ministry of Business, Innovation and Employment has issued warnings involving scammers intercepting business to business emails. In August this year, email correspondence between two companies was intercepted in order to alter the banking details on an invoice. It wasn’t until $18,000 went astray that the problem was linked to a complex email scam.

WHAT TO LOOK OUT FOR

  • One clear giveaway is an excessive amount of grammatical or spelling errors. This is common due to the number of scams originating from foreign countries.
  • Many scams will urge you to visit a website to update or enter your account information. You should not enter personal or account details anywhere on the internet without first confirming the legitimacy of the source. Alarm bells should particularly ring if the request comes from a ‘bank’.
  •  Take notice if the return email address is a public service domain such as Yahoo or Gmail. A legitimate company should have its own domain and company email account.
  •  If you receive information that you have come into a large sum of money through a lottery, competition or inheritance that you have never heard of, chances are that this is a scam. Take further measures to confirm the validity of the email before doing anything else.
  •  If you are faced with a suspected scam email containing any of the above elements, you should attempt to verify the authenticity of the email by independent means. If you are unsure, seek legal advice before making any response to an unsolicited email.


 If you have any questions about the newsletter items, please contact Rick or Lianne, we are here to help.


 

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