The first Employment Court decision involving “availability” provisions has been released, in which McDonald’s Restaurants was successful in showing that its individual employment agreements complied with the law. The case is Fraser v McDonald’s Restaurants NZ Limited  NZEmpC 95. Kathryn Beck and Tim Oldfield acted for McDonald’s.
The case involved two McDonald’s crew employees during a short period when they were employed on individual employment agreements. They argued that their employment agreements breached the law. Their claim was that McDonald’s, in setting their rosters, had effectively required them to work additional hours beyond their guaranteed hours, without paying reasonable compensation. This was because the employment agreements said that McDonald’s could “reissue your schedule at our discretion”.
One difficulty with the employee’s claims is that they could not point to any practice where McDonald’s had required them, or anyone else, to work beyond their guaranteed hours. The Court found the operating practice was that employees would nominate periods when they were available to work, and then McDonald’s would produce employee rosters (with no less than their guaranteed hours within those periods of availability). If McDonald’s had additional hours which were available they would offer them to employees who had specified that they were available, but would not require them to do those hours. If an employee agreed to do those additional hours, then the roster schedule would be “reissued”.
As a result, the Court concluded both that the employment agreements and McDonald’s practice complied with the law regarding “availability” provisions.
The decision does not provide as much clarity as employers had hoped. However, it is useful for employers who are operating roster systems in a similar way to McDonald’s, because it demonstrates that if an employer is not “requiring” work to be undertaken in addition to guaranteed hours then this will not amount to an “availability” provision.
Another recent decision of note is a decision of the Employment Relations Authority involving an attempt by a union to access a workplace not controlled by the employer. The case is E Tu v Evergreen International LLC t/a Armourguard Security  NZERA Wellington 68. Don Mackinnon acted for Armourguard.
Following the tragic events at the WINZ office in Ashburton, the Ministry of Social Development increased security personnel at its WINZ branches. MSD contracted with Armourguard to have security guards present at these branches.
E Tu tried to access certain WINZ branches to speak to security guards, and sought consent from Armourguard to access the premises. Armourguard informed E Tu that it was unable to consent because it didn’t have any control over who accessed those premises (because MSD did). MSD subsequently did not allow access. Armourguard offered E Tu alternative Armourguard offices where E Tu could speak to security guards. E Tu was not satisfied with those alternatives and brought a claim in the Authority alleging Armourguard had breached the access rules and sought penalties. It also alleged that MSD had aided Armourguard to breach the access rules.
The Authority accepted Armourguard’s arguments that it could not grant access to premises which it did not control and as a result determined that Armourguard had not breached the access rules. This is an interesting case which has the potential to affect a number of workplaces where there are third party contractors present, and it is possible that the decision will be challenged to the Employment Court.
Finally, the Employment Court has provided clarity about notice requirements when employment is terminated during a trial period. The case is Farmer Motor Group Limited v McKenzie  NZEmpC 98.
The employee had a valid 90 day trial period in his written employment agreement. The agreement said that the notice required during the trial period was 4 weeks, and the employer was entitled to pay the employee in lieu of all or part of the notice period.
Before the end of the trial period, his employer told him that his employment his employment was being terminated under the trial period, the dismissal was effective “immediately”, and that he would be paid 4 weeks’ salary in his final pay in lieu of him working those 4 weeks.
He alleged that his employer had not complied with the notice requirements of his trial period because by being told the dismissal was effective “immediately” he had been given “no” notice. The Court agreed. It confirmed that in order for a dismissal to comply with a trial period clause, any notice given must be in accordance with the agreement.
This is a subtle but very important point. You can still have a person’s employment end on the basis of a trial period on the day notice is given, but:
- the amount of notice must be given to the employee (i.e. one week’s notice if that is what is in the employment agreement); and
- the notice can then be paid in lieu of requiring it to be worked out (if the employment agreement allows that).
Alternatively, you can give the notice of termination and require the employee to work it out, it that is going to work practically by having the employee remain at work for that time.