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COVID-19: My employer has treated me unfairly ... Now what?



Over the past week, I have been publishing a number of articles about the COVID-19 pandemic, and its relationship with employment law. In particular, I informed New Zealand of their right to receive wages during this time, and questioned the legality of forced annual leave during this time.


I have been inundated with your questions, and I am responding to your concerns. I've been tirelessly preaching your rights during this time. However, for most people, the question becomes;


  • "So, my employer isn't paying me right ... Now what?"

  • "My employer forced me to use my annual leave ... Now what?"

  • "I've been made redundant ... Now what?

  • "My employer has permanently changed my wage/hours ... Now what?


I know you are scared, and you are pleading with your employers to do the right thing. Many of you have shared my post with your employers; but it's just not enough. In this post, I want to relieve some of that anxiety, by providing you with some real options (both practical and legal) on how to address and resolve these situations.


Incorrect payment of wages


You've read my blog, you've read my Q&A's, you may have even heard my radio appearance ... And now you've established that you're not being paid correctly ... Now what?


If you're looking for a "here and now" solution, unfortunately; there aren't many. Pragmatically speaking, I recommend that you have an open and honest discussion with your employer about its ability to pay wages. Employees and employers should be working together in these tough times. In fact, the most pragmatic solutions don't involve the law at all. They involve both parties understanding each others positions, and coming to an agreement on that basis.


Sometimes, it's not that easy. In those situations, an employment representative could write a letter to send to your employer, to remind them of their obligations; but employers are stressed, and they aren't reacting well. You risk getting in their "bad books", and although they couldn't legally disadvantage or dismiss you; frankly put, if all employers acted fairly, I wouldn't have a job.


But, that doesn't mean that there aren't options; it just means you might have to financially struggle a little before you get a resolution. I'm sorry; but in the mean time, I do recommend reaching out to WINZ to find out about your eligibility for any benefits to help you during this time (perhaps see my latest article about options for financial support).


You have a six-year period to raise a claim for incorrect wages, so I suggest you start collating evidence and calculating what you are entitled to. This will help when you decide to make a claim. The process for raising a wage claim usually involves:


  1. Writing a letter to the employer, stating your claims.

  2. Attempting to informally settle the dispute (often through mediation)

  3. An investigation meeting at the Employment Relations Authority.


I'm sure you're thinking; I can't afford that! Don't panic. If you are concerned about costs, there are two options: enquire with a legal-aid provider, or you can engage a "no win, no fee" advocate (like myself) to pursue your claims.

Forced to use annual leave


You've read my article on annual leave, and you believe that you were incorrectly forced to take your annual leave. Many employees are being issued with notices of direction, whereby the employer purports to be using its right under the Holidays Act 2003 to give you 14 days' notice to use your annual leave.


The short answer is; your employer can't do this. If you want a "here and now" solution, however, your options are similar to those listed under "incorrect payment of wages".


However, you will also have a six year period that you can make a claim to reimburse you of the annual leave you were forced to take. This is untested law; but it is my view that the Authority would reimburse you of the value of that leave (and would not require you to pay back what you were forced to take). This is consistent with the law's approach to other claims made under the Holidays Act 2003.


Made Redundant


You've been made redundant, and after reading my blog post, you believe this was unfair and unreasonable in the circumstances.


Chances are, you're probably right. It's going to be incredibly difficult for an employer to justify permanent redundancies during this time.


But, what can you do?


Firstly, I offer a pragmatic solution; ask for re-employment. Unfortunately, a number employers made a series of knee-jerk redundancies before the Wage Subsidy Scheme was amended to remove the 150k cap. As a result, they have exposed themselves to risk of a personal grievance. However, re-employment could eliminate that risk (for now).


In addition, it would not cost your employer anything to re-employ you. They are able to apply for the subsidy on your behalf, and so long as you agree to receive only the subsidy (while you are not working), it would cost them nothing to keep you employed for the next 12 weeks.


This is a pragmatic solution, and I urge that you consider it. I have seen it happen. But, it doesn't mean you won't be made redundant in the future. Businesses are struggling; but this can provide a short-term solution for the employee, and it would provide businesses with adequate time to thoroughly consider whether a restructure is necessary.


If this is unsuccessful, you may need to consider raising a personal grievance for unjustified dismissal. You have 90 days to raise a personal grievance; mark this date on your calendar. You are able to claim lost wages, a tax-free sum to compensate you for the hurt and humiliation you have suffered, and a contribution towards your legal costs. The personal grievance process usually involves:


  1. Raising the personal grievance with your employer.

  2. Attempting to informally settle the dispute (often through mediation)

  3. An investigation meeting at the Employment Relations Authority.


If you believe you have been unjustifiably dismissed, please get in touch using my contact details below.


Restructure


Restructure doesn't always mean redundancies; it can include proposals to reduce the number of hours you work, or to reduce your rate of pay.


If your employer has made a unilateral decision to permanently change any term of your employment, then they have essentially conducted a restructure, without following a fair and reasonable process.


Again; I urge that you have conversations with your employer. But, if this does not work, you are similarly able to raise a personal grievance for unjustified disadvantage. If you believe you've been unjustifiably disadvantaged, please get in touch by using my contact details below.


Conclusion


First and foremost, we should be working together to resolve our problems. But, sometimes that's not enough. If you believe you have a wage or annual leave claim, you have six years to pursue it. If you have a personal grievance, you have 90 days to raise it.


There is still one question that I am looking into for you, that is; "I've been forced to agreeing to lower my hours/wages ... Now what?" This involves situations where the employer asks an employee to change the terms of their employment, under the threat of nonpayment of wages. Arguably, this could constitute duress and therefore the agreement would not be enforceable. However, this is a high threshold; so I am looking at other avenues in employment law.


If you have any questions, please get in touch using my contact details below.


Ashleigh Fechney

LLM(hons), BA

027 555 999 5 Ashleigh.the.Advocate@gmail.com www.ashleightheadvocate.co.nz


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