We all have those workmates who will readily give you their takes on employment law over the break room water cooler but are these New Zealand employment law myths fact or fiction? We have compiled a list of several common employment law myths and sat down with one of our advocates to find out if they are fact or fiction.
Myth #1: “Three strikes and you’re out!”
“Batter Up! Three strikes and you’re out!” We have all heard this expression either on TV about a baseball game or in the workplace about a supposed three-strike rule when it comes to disciplinary strikes. So, is the three strikes myth fact or fiction? Sacked Kiwi Founder, Alex Kersjes, says, “Swing and a Miss! The three strikes rule in the workplace is more of a myth than a reality.”
Contrary to the popular belief that employees operate under a strict three-strikes policy, New Zealand employment law does not mandate a one-size-fits-all approach. The notion of three strikes and you’re out is often oversimplified and doesn’t accurately reflect the nuanced nature of disciplinary processes.
The Employment Relations Act 2000 emphasizes the importance of fair and reasonable procedures in dealing with disciplinary matters. There is no automatic trigger that results in termination after three strikes. Instead, each case is evaluated individually, considering the severity of the issues, the employee’s previous conduct, and other relevant factors.
Employers are expected to follow a fair process, which may involve warnings or other corrective measures depending on the circumstances. Termination is not an automatic outcome after a set number of strikes, and employees have the right to challenge the fairness of any disciplinary action. So, next time you hear about the three-strikes rule, remember that the reality is more about fair play than a rigid scorecard.
Myth #2: “I am automatically on a 90 Day Trial when I start a new job.”
A lot of misconceptions and myths exist around 90-day trials. A common one is that 90-day trials are an automatic thing that occurs at the start of a new job. A commonly held belief, by employers and employees alike, is the rules and dismissal procedures, inherent to a 90-day trial, are automatically a part of the start of every employment. This is simply wrong, 90-day trials are opt-in legislation which means they do not apply unless specifically included in your Employment Agreement.
The Employment Relations Authority (ERA) is known to take a strict interpretation of the legislation created by 90-day trials. In doing so, the ERA has set a high standard for the drafting and inclusion of 90-day trials in employment agreements. This means that not only are 90-day trials opt-in legislation but even when they are included in employment agreements if drafted vaguely may be null and void. Sacked Kiwi Founder Alex Kersjes says, “….”
In short 90-day trials are not automatically applied to new employees when they start. For them to be in effect clear cohesive and direct agreement drafting must set out the terms of each trial. This myth is a fiction.
For more please check our out Learn tab and check out our learning resources for 90-day trials.
Myth #3: “I am allowed to bring a clown as a support person to a disciplinary meeting.”
The Employment Relations Act doesn’t clown around when it comes to employee and employer conduct though. While you can officially bring a clown, you still must act in good faith with your employer, so clowning around at the meeting is off the books.
The intent is to enable employees to have access to moral, legal, and emotional support during sometimes difficult formal meetings with their employees so it’s essential to strike a balance. While you can legally bring a clown to a disciplinary meeting you are walking the tightrope between humour and seriousness it’s essential to ensure that the presence of your support person doesn’t disrupt the proceedings or hinder effective communication.
In short, it is a Ringmaster-approved fact and while a clown might add a splash of colour to the proceedings, approach it with a wink and a nod, recognizing that the primary goal is to have a constructive discussion with your employer in good faith.
Myth #4: “I have accrued annual leave, so I am allowed to take it.”
It’s a common assumption: you’ve seen that annual leave balance on your pay slip, and it seems only fair to use it whenever you please. You would be surprised to hear that this myth is a rather complex fiction. While gathering and accruing leave is very simple, taking it is not as simple as booking a hotel.
Contrary to what many people believe you and your employer must mutually agree when you take paid annual leave, it is not a unilateral decision on your part or theirs. This means an employer can not decide unilaterally when you take your leave, and neither can you.
Another factor which makes this myth more complicated is the Holidays Act 2003. According to the Holidays Act 2003, “After the end of each completed 12 months of continuous employment, an employee is entitled to not less than 4 weeks’ paid annual holidays.” This means that legally you are not entitled to your leave until that 12 months have passed. It is, however, commonplace in the workforce for employers to let you use leave as it accrues.
Myth #5: “Casual Employees don’t have the same rights and protections as regular employees.”
This is a widespread belief that has caused many casual employees to feel vulnerable in their positions. Are casual employees truly without the rights and protections afforded to their full-term counterparts? Simply put casual employees have more flexible working hours than part-time or full-time employees, they are simply casual.
Now the myth that they do not enjoy the same protections is fiction with some exceptions. Casual employees in New Zealand do have rights and protections, though they may differ from those of permanent employees. Two major differences are protections to dismissing a casual employee and how holiday and leave entitlements work compared to a regular employee.
The current legal stance is every time a casual employee accepts a new offer to work it is viewed as a new period of employment. This means that if an employer were to just stop offering work to a casual employee it would not be viewed as a dismissal, thereby the standard dismissal protections enjoyed by regular employees would not apply. There are of course exceptions to this.
Let’s say in a hypothetical workplace a full-time employee is sick and the boss needs a casual employee to cover their workload for the week and as a result offers the casual employee a week of work. Midway through the week and halfway through a shift the employer decides to send the casual employee home and asks them not to come in for work for the rest of the week. This would be considered a dismissal and regular protections and rights to workers would apply as the employer and employee had an agreement on a period of work.
Simply put, due to the casual nature of the employment, it is ok for an employee to simply say that we no longer have any more work for you, normal dismissal protections do not apply, however, if the employer dismisses you during an agreed period of work, then the protections do apply.
The other main difference in rights and protections for casual employees compared to regular employees is regarding holiday and leave entitlements. Casual employees have flexible and non-consistent working periods with no set hours and, as a result, are not entitled to the full 20 days of annual leave a regular employee is. Depending on your employment agreement you might agree with your employer to simply receive 8% on top of your regular pay, instead of taking your annual leave, or to accrue leave as you work.
In conclusion, the myth that casual employees lack rights and protections is a partial fiction. While there are differences in the entitlements between casual and permanent employees, casual workers in New Zealand are not devoid of protection under the law. If you are a casual employee and believe your rights may be infringed on feel free to call Sacked Kiwis toll-free hotline: 0508 22 77 99.
Legal Disclaimer: The content posted on the Sacked Kiwis website should not be considered or relied upon as legal advice or opinion. The information presented here is not intended to serve as legal guidance. Over time, laws and regulations evolve, potentially altering the accuracy of previously shared information. Updates in jurisprudence or legislation, which could happen without immediate notice, may render the legal information on this platform outdated.
