What bosses and workers owe each other
The overriding obligation on both employers and employees is to treat each other in good faith and this requires them to be active and constructive in maintaining a good relationship.
It includes being responsive and communicative in their employment dealings.
Also covered by the duty is the employee’s union, which must behave in a similar good faith fashion towards the employer as the employer must towards the union.
In relation to dealing with the union an employer must not try to get an employee to not be involved in collective bargaining or to not be covered by a collective agreement.
A common example of when communication and consultation in good faith is required is if the employer is considering making employees redundant.
The good faith duty requires the employer to provide information about the proposal unless it is commercially sensitive, for example the terms of the sale and purchase agreement.
The Employment Relations Authority and Employment Court can impose penalties for breaches of good faith.
Employees also have a duty to carry out their work and employers have a duty to pay the agreed remuneration and benefits.
A problem can arise if work cannot be carried out. In the example of earthquakes putting businesses out of operation, an employee would still be entitled to be paid if they were willing and able to work. This is so even if there is no work because of the destruction.
However, if the employee is unable to work, because they cannot get to work due to the destruction or is unwilling to work because they stay home to look after their family, property or neighbours then they are not entitled to be paid. The same would be true if there is a power cut, volcanic eruption, snow storm, etc.
Employers are obligated to provide work, and not just pay the wages, so that employees can keep up their skills and reputation.
An employer cannot simply pay the employee’s wages and provide no work, but if the business can be run without the employee, the employer can go down the redundancy path. Employers must provide a safe workplace and provide the necessary safety equipment and training.
Employees must not do anything which injures themselves or others in the workplace and they must follow health and safety instructions and properly use the safety equipment provided.
Employees must obey reasonable and lawful instructions of their employer and take reasonable care when carrying out their work. An employee can refuse to carry out unsafe work unless it is inherently dangerous work but they can be redirected to other tasks in the meantime.
If an employee breaches their obligations this can result in a justified dismissal after a fair process is followed as well as penalties and damages.
If an employer breaches their obligations they can face penalties and damages claims for lost wages plus hurt and humiliation compensation orders.
Column courtesy of RAINEY COLLINS LAWYERSphone 0800 733 484 www.raineycollins.co.nz If you have a legal inquiry you would like discussed in this column please email Alan on aknowsley@raineycollins.co.nz