Navigating Stormy Waters a brief guide to selected contractual conundrums in the employment sphere James Pullar Taylor Shaw

We’re going to talk about contractual issues arising from… 90 Day trial periods Sick Leave The Vulnerable Children Act Education Council

90 Day Trial Periods (an example clause) A trial period will apply for the first 90 days of employment to assess and confirm suitability for the position. During the trial period, either party may terminate the employment relationship on notice. The employee may not pursue a personal grievance or other legal proceedings in respect of a dismissal. At the expiry of 90 days, the position will be confirmed by the employer which may include a further probationary period of 90 days for further assessment of the employee’s performance of his or her obligations under this agreement.

90 Day Trial Periods Common pitfalls Agreement must be signed before the employee starts work Protects against dismissal - and not disadvantage, discrimination, sexual harassment etc Overriding obligations of good faith still apply

And what to do when it is being abused…. Sick Leave… And what to do when it is being abused….

Sick Leave Preliminary issues Do you have doubts? A medical certificate can be requested immediately - if you are prepared to pay for it. You might then receive a certificate that typically reads: “I have seen and examined Joe Bloggs and in my opinion he is unfit to work between 1 August and 10 August 2017.”

Sick Leave Medical Certificates must comply with the Medical Council’s publication: “Statement on Medical Certification” “information disclosed should be accurate and based upon clinical observation, with patient comment clearly distinguished…” “where the diagnosis relates to a workplace injury or illness, or where it may have an impact on co-workers and the public, and the medical certificate is to be received by the patient’s employer you should seek the patient’s permission and include on the certificate both a diagnosis and the workplace factors which may have contributed.” “a receiving agency may seek clarification from you about the patient’s health status”

Sick Leave Medical Incapacity Continuous vs sporadic sick leave Are the absences resulting in a noticeable impact upon the School’s operations? The point at which an employer can “fairly cry halt” Have you met to discuss the sick leave? Has sufficient medical evidence been obtained? What if the employee refuses to disclose further medical information?

Vulnerable Children Act 2014

Vulnerable Children Act 2014 Child Protection Policies should now be in place All staff should now be aware of the checks that the School must undertake and the regularity of these checks Core workers need to be aware that if they do not pass this check, it is possible the School may not be able to employ them in a “core worker” role any longer Non-core workers - do not have a statutory embargo on ongoing employment - but issues should be still be examined further in an employment investigation process

Education Council

The Education Council The Education Act 1989 sets out that it is a MANDATORY requirement to report to the Education Council when: A teacher is dismissed A teacher resigns AND the employer has raised issued of competence or conduct with that teacher within 12 months of the resignation A teacher has not reached the required level of competence after having completed a competency process A complaint is received regarding any teacher who was employed by the School within the last 12 months AND….

The Education Council Possible Serious Misconduct…. It is mandatory to report if the employer has “reason to believe” that the teacher has engaged in serious misconduct A much lower threshold than what is required to discipline an employee BUT - the implications can be enormous for all parties Failure to report – conviction and fine of up to $25,000

QUESTION TIME Taylor Shaw www.taylorshaw.co.nz