Things to consider when making an employment agreement in NZ.
As we start a New Year, you may be considering hiring new employees within your business or reviewing your current employee documentation. While an initial challenge may be finding the right person, the challenge that is often mishandled is ensuring that the employment documentation provided to the new or current employees is compliant and aligns with your business goals and values.
Firstly, with respect to new employees. In late 2024 we experienced a few situations with clients where errors or omissions within the employment offer documents created issues for the company down the track.
Firstly, with respect to new employees. In late 2024 we experienced a few situations with clients where errors or omissions within the employment offer documents created issues for the company down the track.
Case Study One
The first situation relates to the use of pre-employment work assessment processes.
Case Study Two
The second situation relates to a requirement for criminal history checks.
Case Study Three
The third issue relates to the provision of false or misleading information presented by the candidate in seeking to secure the employment.
Get in Touch.
Call now for an obligation free conversation to discuss your needs.
Case Study One.
The first situation relates to the use of pre-employment work assessment processes.
If a company, as part of their recruitment assessment process, wishes to have the candidates come in for a period to perform a number of tasks or activities to assess their skills and abilities, you must have the employee sign a declaration prior to them commencing this assessment.
Does a work assessment count towards the employee’s 90 day trial?
The declaration, amongst other key points, must confirm that this is part of the assessment process, and the completion of the assessment does not provide any guarantee that an offer of employment will be made. The declaration must also confirm that the period of assessment is unpaid, and that the completion of an assessment will not impact on the ability of the company to use a 90 Day trial if an offer of employment is subsequently made.
What are the problems with this?
Problems arise where such a declaration has not been provided, and signed, in that an unsuccessful candidate may claim that this was the commencement of their employment or that they should have been paid for the period during which they ‘worked’ for the company. We have had one case in the past that went all the way to the Employment Relations Authority on this type of claim alone – where, if a declaration had been signed prior to the work assessment, this would have provided evidence to shut such a claim down at the onset.
Case Study Two.
The second situation relates to a requirement for criminal history checks.
The results of such checks can take several weeks to arrive, and in many cases the employee is permitted to commence employment while the results are being sorted. Employment documentation is often not robust enough to explicitly outline the provisions that will apply if this information, when received, renders the person unsuitable for the position.
Can I terminate an employee due to them not meeting a criminal history check?
Seeking to exit an employee after they have commenced employment, due to poor criminal records check results can then prove problematic and may result in an unjustified dismissal claim if the original offer documents did not adequately outline the potential termination potential or process from the outset.
Again, we have had matters proceed through to the Employment Relations Authority on the basis of an unjustified dismissal claim where the employee has been terminated based on a criminal record report received after they have commenced employment.
Again, we have had matters proceed through to the Employment Relations Authority on the basis of an unjustified dismissal claim where the employee has been terminated based on a criminal record report received after they have commenced employment.
Case Study Three.
The provision of false or misleading information presented by the candidate in seeking to secure the employment.
When reviewing your current employment documentation, it is important to make sure that it is compliant with any changes in employment law and that it continues to align with any changes within your business such as strategy, values or goals you may have implemented.
As you enter a new year, now is the right time to ensure that you have up to date employee documentation along with policies and procedures as this is your fallback position if you have any difficulties moving forward with your current staff or any new staff you intend to recruit.
If you have any questions with respect to these issues or need assistance in reviewing and updating your documentation, please feel free to contact us directly.
As you enter a new year, now is the right time to ensure that you have up to date employee documentation along with policies and procedures as this is your fallback position if you have any difficulties moving forward with your current staff or any new staff you intend to recruit.
If you have any questions with respect to these issues or need assistance in reviewing and updating your documentation, please feel free to contact us directly.
Can I terminate an employee if they lied in the interview process?
In such cases, employment documents must contain robust provisions that confirm that, where after commencing employment, it is found that the employee obtained the role based on the provision of false or misleading information, this may result in the termination of employment. However, whether this can be enforced without liability will then be subject to the process applied at the time of the dismissal decision, and to the period that has transpired between the hiring decision being made and the potential termination occurring.
Again, risks associated with such issues can be mitigated by ensuring the possibility of termination occurring is well documented within the employment offer documents.
Again, risks associated with such issues can be mitigated by ensuring the possibility of termination occurring is well documented within the employment offer documents.