Employee Or Contractor

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Our expert employment lawyers provide advice on employee or contractor status and rights.

Are you wondering whether you are an employee or a contractor?

This is a common question that many workers in New Zealand ask. Although these two types of employment can be similar, there are some things that differentiate them. An employee must be paid minimum wage and have minimum rights as written out in the Employment Relations and Holidays Act. They have to have a written agreement and are directed by their employer about when and where to work and what their expectations are. On the other hand, a contractor is a self-employed person who regularly performs a particular service.

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Our Case Process

Detailed Planning

We start by establishing the facts, identifying the issue and explaining the legal bits so we can get started on solving your employment problem. We want you to have peace of mind from the beginning of your journey with us.

Consultation

Next, we discuss your expectations and any risks we think you are facing, evaluate all evidence and prepare an action plan so you get the best outcomes. We prepare you for what’s to come and what you can expect.

Settlement

In the last part of our process, we prepare you for attending any meetings (such as disciplinary) and complete the outcome as cleanly and as quickly as we can. We strive to protect our clients and get you the best results.

What are the legal differences?

A contractor earns their income through issuing an invoice, must pay their own taxes and ACC levies. They also aren’t entitled to any annual, or sick leave like employees are. The most significant difference is that only an employee can raise a personal grievance claim. You have various rights if you are an employee or a contractor, but if you take an issue to court, they will look at the wording in your employment agreement rather than the label.

At Resolve Legal, we can help determine whether you are considered an employee or a contractor. We will let you know about any employment law changes and how they might have an impact on your type of employment. We will take a look at your employment agreement and explain the rights you have in your position. Our team will advise you on what type of employment may be better suitable for you.

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Contractor Resources

Bullying
What Is Bullying?

WorkSafe defines bullying as:

Repeated and unreasonable behaviour;

Directed towards a worker or a group of workers;

That creates a risk to health and safety.

There are many examples of bullying, and some are easy to spot, however some are more subtle and harder to spot.

Why Is Bullying My Business?

Bullying is:

Unacceptable on moral grounds and

You should take immediate steps to deal with bullying in the workplace appropriately.

If left unchecked and a bullied employees suffers a medically recognized condition because of stress, you may be liable to prosecution:

Under the Health and Safety in Employment Act of 1992

Or liable under the Employment Relations Act 2000

Harassment Act 1997

Or the Human Rights Act 1993.

Your employees would also be able to raise a personal grievance against you.

What Does Workplace Bullying Look Like?

Bullying is behaviour that is:

1. Repeated

2. Offensive

3. Intimidating

4. Malicious or Insulting

5. Or an abuse of power that:

Undermines

Humiliates

Injures the recipient

Its effects are accumulative and difficult to control.

The employee will suffer silently for a long time before they realise they are being bullied.

Attached at the bottom of this document is a table of WorkSafe’s bullying behaviours.

Examples Of Bullying:

Copying emails about someone to others who don’t need to know

Excluding an employee

Setting up an employee to fail

Making threats about job security

Overloading someone with work

Physical intimidation

Picking on someone

Insulting someone

Spreading malicious rumours

Bullying Is Not:

Firm management

Impoliteness from the employer

Dissatisfaction of an employee’s performance

Inconsiderate conduct of a manager or staff member that could make an employee unhappy or resentful

Bullying Impact On Employee Productivity:

Bullying can have various negative outcomes, and if an employee gets stressed this can lead to:

Physical stress symptoms such as nausea, anxiety, and headaches

Poor performance

Increased absence

Low morale

Loss of company reputation

Resignations and difficulty in recruiting

Poor customer service and / or poor product quality

What should I do?

There are various steps you can take to prevent bullying, because you have a chance to sort it out before it has a chance to fester and grow. Bullying can cause employees to raise personal grievances so it is important to take all bullying complaints seriously.

These are:

1. Make sure you document every complaint you receive

Write down notes about meetings you have around these complaints

Keep witness statements, complaints, and any other relevant information

This ensure there is a paper trial of everything that happened

2. Lead by example by setting up a workplace culture that does not tolerate bullying. You can do this by:

Having posters or pamphlets around the workplace that state what is acceptable and what is not

Having core business values

Celebrating diversity

Letting staff know that if they come forward about bullying, they will be respected and supported

Ensuring managers are firm and do not tolerate bullying of any kind and are quick to act on it

3. Include an anti-bullying clause in every employees individual employment agreement

This ensures that if they do engage in bullying behaviours, there is something you can point too that they are breach of

4. Set up a formal workplace policy and procedure for workplace bullying. Ensure the policy includes:

What to do if an employee is getting bullied

What to do if an employee notices someone else getting bullied

What they should expect the process to look like and how the expected timeframes

Possible consequences for the employee engaged in the bullying behaviour

Outline confidentiality and the expectations around that

Support avenues for anyone involved, should they need it

5. Run staff training programmes at all levels that touch on bullying and its effects. Here you can:

Train managers on how to spot bullying and taking a firm stance on it

The impacts on bullying

What to do if you feel you may be bullying someone

Provide examples of bullying

Reiterate the possible consequences

6. Establish a neutral representative that staff can consult with if they are experiencing bullying in the workplace

This will help employees feel safer about coming forward about being the victim or perpetrator

Need Further Advice?

If workplace bullying is occurring in your workplace contact us as we can help you resolve bullying in the workplace.

We can also assist with writing contract clauses and workplace policies around bullying.

Here is Worksafe’s list of Bullying Behaviours:

Bullying behaviours – personal and task related

Belittling remarks – Undermining integrity – Lies being told – Sense of judgement questions – Opinions marginalised

Giving unachievable tasks – Impossible deadlines – Unmanageable workloads – Overloading – ‘Setting up to fail’

Ignoring – Excluding – Silent treatment – Isolating – Ignoring views

Meaningless tasks – Unpleasant jobs – Belittling a person’s ability – Undermining

Attacking a person’s beliefs, attitude, lifestyle or appearance – Gender references – Accusations of being mentally disturbed

Withholding or concealing information – Information goes missing – Failing to return calls or pass messages

Ridiculing – Insulting – Teasing – Jokes – ‘Funny surprises’ – Sarcasm

Undervaluing contribution – No credit where it’s due – Taking credit for work that’s not their own

Shouted or yelled at

Constant criticism of work

Threats of violence

Underwork – Working below competence – Removing responsibility – Demotion

Insulting comments about private life

Unreasonable or inappropriate monitoring

Physical attacks

Offensive sanctions e.g denying leave

Public humiliation

Persistent and / or public criticism

Changing goalposts or targets

Using obscene or offensive language, gestures or material

Not giving enough training or resources

Ganging up – Colleagues / Clients encouraged to criticise you or spy on you – Witch hunt – Dirty tricks campaign – Singled out

Reducing opportunities for expression – Interrupting when speaking

Intimidation – Acting in a condescending manner

Sabotage

Intruding on privacy. e.g. spying, stalking, harassed by calls when on leave or at weekends

Supplying incorrect or unclear information

Unwanted sexual approaches, offers, or physical contact

Making hints or threats about job security

Verbal abuse

No support from manager

Inaccurate accusations

Scapegoating

Suggestive glances, gestures, or dirty looks

Denial of opportunity

Tampering with personal effects – theft – desturction of property

Judging wrongly

Encouraged to feel guilty

Forced or unjustified disciplinary hearings

Lack of role clarity

No trusting
Sexual Harassment
What Is Sexual Harassment?

Sexual Harassment is a type of harassment that involves implicit or explicit unwanted sexual tones. It is defined in the Human Rights Act 1993 and the Employment Relations Act 2000. It states that it is unlawful for any person to:

– Make a request to another person for sexual intercourse, sexual contact, or any other form of sexual activity which:

Contains an implied or overt promise of preferential treatment or

A threat of detrimental treatment or

Is unwelcome or offensive to that person or

Is repeated or

Of such a significant nature that it has a detrimental effect on that person

When a person complains of sexual harassment, no notice of their sexual experience or sexual reputation can be taken into consideration.

Examples Of Sexual Harassment:

Sexual harassment can include a wide range of activities, some more subtle than others:

Sexual comments

Sexual jokes

Implied threats

Actual threats

Any unwelcome touching

Being followed home by a co-worker

Being constantly asked to go on dates or hang out outside of work hours

Sexually offensive images

Intrusive questions about your sex life

How Do I Deal With Sexual Harassment?

If you receive a report on sexual harassment, it is best to contact us, and we can let you know what steps to take so that you can protect everyone involved. However, an overview of the process is:

1. Take all sexual harassment reports seriously

2. Act promptly

Deal with reports as soon as possible after you receive them

3. Clearly communicate the process and follow it as soon as possible

Ensure you tell everyone involved what the process is

If there are delays, make sure to communicate this too

4. Protect ALL parties involved

This includes both parties, witnesses, and support people

Also offer to support them – is there counselling they can access
or any other help services they can talk too?

5. Make sure it is confidential

Ensure people only know things on a need to know basis

6. Be respectful and fair

Ensure the decision maker is unbiased

Make decisions on the facts and not emotions

Let everyone know the decisions you came too

7. Document everything

Ensure you document all the information you have. This includes notes from meetings, witnesses’ recollection, explanations from people involved.

Store all the information in a safe place

It is also important to remember that emotions are high as sexual assault can affect people in unusual ways, so be kind and patient.

How To Prevent Sexual Harassment?

There are various things you can do to try and prevent sexual assault in the workplace. Ensure you have:

1. A good workplace policy around sexual harassment and the process that will occur if an allegation is made. This will give you an easy roadmap to follow if an allegation appears. Ensure the policy outlines:

Ways people can report sexual harassment

What to expect after they have reported it

2. A clause in the employees individual employment agreement sexual harassment and referring to the company policies surrounding it

3. Foster a positive workplace culture that does not tolerate sexual harassment

Have a code of conduct that describes expected behaviours as well what unacceptable behaviours are

Have and promote core business values

Promote good working relationships

Promote diversity

Set up a conflict management process

Set up a good process for people to report sexual harassment

Ensure workers know they will be protected and supported if they report sexual harassment

4. Educate workers around sexual harassment

Provide education around topics such as consent, what sexual harassment is, how to identify it, what the sexual harassment policy states and how to report it if it is happening to them or someone else

Ensure your workplace induction for new employees discusses sexual harassment and relevant policies and procedures

You can put posters up around the workplace to remind employees about what is not tolerated

Train workers around what to do if sexual harassment is disclosed to them

Train managers to call out the behaviour early before it escalates

5. Lead by example and treat all staff and situations professionally
Racial Harassment
What Is Racial Harassment?

Racial harassment occurs when an employee or a co-worker uses language, physical behaviour, or visual material that is hurtful or offensive to the employee.

And the behaviour is so significant that it has a negative effect on the employee’s employment or job performance.

Example of Racial Harassment:

There are various examples of racial harassment. These are:

Making offensive comments about someone’s race

Making offensive jokes about someone races

Copying or making fun of the way someone speaks

Calling people racial slurs or other racist names

Deliberately mispronouncing someone’s name

Mocking someone’s name

The person doing the harassment does not have to have bad intent, Racial Harassment depends on how the affected person interpreted and was impacted by the behaviour.

How To Respond To Racial Harassment?

If any employee believes they are being racially harassed, they should be encouraged to give you a written complaint.

Once you have received a complaint, you must:

1. Investigate the alleged incident

2. On the facts, determine if it happened

3. If you think it happened, you must take whatever steps are practicable to stop it from happening again

4. If the harassment occurs again, and you have not taken practicable steps to investigate and deal with it as a breach or misconduct your employee can:

File complaint to the Human Rights Commission (as you will be in breach of the Human Rights Act 1993) or raise a personal grievance against you

How To Prevent Racial Harassment?

There are various ways you can prevent racial harassment in the workplace.

1. Create a racial harassment workplace policy

2. Include a clause relating to the racial harassment policy in your employees individual employment agreement

3. Lead by example

4. Foster a workplace with a zero-tolerance approach to racism and racial harassment
ACC Obligations
What Is ACC?

Accident Compensation (ACC) is a no fault government scheme under the Accident Compensation Act 2001, that provides accident insurance cover for NZ Citizens and residents and temporary visitors to NZ.

All workplaces must carry out risk assessments

Every business has different risks specific to their industry equipment and the tasks their employees perform. A risk assessment is a vital tool in preventing workplace accidents.

What is a Workplace Accident?

“Accident” is defined by law as:

A specific event

Or series of events (but not a gradual process)

Involves application of a force or resistance which is external to the body

Involves the sudden movement to the body to avoid a force or resistance that is external to the body

Involves a twisting movement of the body

Other forms of accidents include:

Breathing in or swallowing a dangerous liquid, gas or foreign object

Burns or exposure to radiation, but this does not cover sunburn

Why should ACC matter to me?

Managing your ACC process effectively is a key part of being a good employer.

ACC Corporation’s role is to help you with injury prevention in and out of the workplace.

Accidents can lead to an increase in workload for other employees. They can also affect staff confidence and morale.

Employers who take health and safety seriously, create strong, safe workplace cultures.

Employees who feel safe in their workplace are more productive and engaged.

And employees feel looked after if:

(i) the process runs smoothly and they feel supported

(ii) they can see their employer taking health and safety seriously

Building a strong workplace health and safety culture could also reduce your annual ACC levies

ACC Workplace Cover

It is a legal requirement for all employers to have Workplace Cover from ACC and pay levies to ACC for your employees.

ACC Workplace Cover is the standard cover for employers and provides you with 24/7 ACC coverage for your employees who are injured at work.

Workplace Cover helps businesses manage the ACC process when an employee gets injured at work.

What to do if there is an accident at work

First week’s wages and medical certificate

Ensure the accident is recorded in your accident and incident register.

If your employee needs time off work due to their injury and they have had a claim accepted for ACC cover:

Injury at work:

If the injury happened at work you will have to cover the employee’s first week of pay

Then ACC will pay your employee 80% of their income after the first week

Injury outside of work:

If the injury happened outside work but affects the employee at work, the employee could use their sick leave

If they do not have enough sick leave, you can allow them to use annual leave

You will still have to pay 80% of their first week’s wages but you can then claim this back from ACC.

Medical treatment and certificate

Talk to your employee about:

Their treatment options and when they plan to start treatment

Check with them how the accident/injury happened

Ensure they have a medical certificate

This should set out the hours of work and type of work they are able to engage in while recovering from their injury

Ask for a copy of their medical certificate

Further discussion with employee

Discuss duties they may or may not be able to undertake

Discuss keeping their job open

Give them ways you and ACC can help them (working from home, income, treatment options)

Ongoing support for your injured employee

If your employee needs more time off work after Week 1:

They can:

Drastically reduce their hours and work their way back up

Do fewer or different work tasks

Talk to them about a Recovery at Work Plan

Recovery at Work Plan:

After the employee has had medical treatment and the treatment provider clears them to go back to work, you should develop a Recovery at Work Plan for them.

The Plan should be developed jointly with the employee

First check what the medical certificate allows them to do

Then discuss with the employee which duties they can continue with at work, and which ones will either be given to other employees, or changed to help the injured employee do them

Record all this in the Plan

Contact ACC and/or their treatment provider if you need help or support. The employee’s case manager can help.

Continue to monitor the employee and check with them if they’re doing OK

Check your current ACC status

Ensure you have ACC business cover for your workplace.

Ensure you have a clause regarding injury payment and ACC in your IEAs for your employees

Ensure your Health and Safety procedures work and are up to date, including your workplace risk assessment and your accident and incident register.

ACC Accredited Employer Programme

If you are a large employer who pays an annual Work levy of over $250,000:

You may want to consider joining the Accredited Employer Programme, where you “stand in the shoes” of ACC and manage your own ACC injury claims

You could reduce your Work levy by up to 90% through the Accredited Employers Programme (AEP), however:
(a) It is a big responsibility (especially health and safety procedures)
(b) There is a lot of extra administration
Casual Work
What Is Casual Work?

A casual employee is someone that:

Works for you on an irregular basis and

There is no expectation of ongoing employment.

There is no expectation that you offer them work and

There is no expectation on them to accept it

What are my obligations regarding casual workers?

It is important:

All casual employees have contracts

To the risk of employment issues arising

Hours should be stated as not guaranteed

Which may change

The work does not turn into a pattern

Or they can claim permanent part-time, full time employee status

This is a common claim as a Personal Grievance

What are casual workers entitled to?

Annual leave

Sick leave

Bereavement leave

Employment Dispute platforms

Annual Leave:

You may choose to pay your casual worker

holiday pay as they go

which is common

paid at 8% of their wages earned
Sick Leave
What Is Sick Leave?

Sick Leave is governed by the Holidays (Increasing Sick Leave) Amendment Act 2021

Employees are entitled to paid sick leave if they are sick or if someone who depends on them is sick or injured and needs looking after

Full-time, part-time and casual employees are entitled to sick leave (see below)

Why Should I Care About Sick Leave

Sick Leave is a legal entitlement for employees

You can’t include a clause in an employment contract that removes or reduces the number of paid sick days, but you can increase the number of days by agreement

You wouldn’t want disease, flu or Covid spreading to staff, clients and others

Covid is a changing target

All employers and employees must comply with government orders, mandates and directions

What Does Sick Leave Look Like?

Sick leave accrues and is taken in whole days, not part-days, unless you agree otherwise in the employment agreement

Sick leave can’t normally be taken in advance of the 6 month period.

But if an employee has used up all their sick leave days and needs to take leave, you can agree to let them take days in advance.

It should be used for sickness or injury, not some other purpose

Exceptions, like planned surgery, could be used for sick leave

Employees should give you as much notice as possible in the circumstances, however sometimes this can only be a few hours

Sick leave is paid at the employee’s ordinary rate of pay or average daily pay

Medical Certificates:

If an employee is off work for 3 or more consecutive days due to sickness you may ask them to provide a medical certificate at their expense.

If the employee has been sick for less than 3 consecutive days, but you suspect their sick leave is not genuine, you can request they provide a medical certificate at your cost

Covid

Follow Ministry of Heath guidance in the workplace around Covid

Be respectful of employee’s fears

Have back up plans for random outbreaks

Prepare for lockdowns at short notice

Working together will benefit
Resignation
What Is Resignation?

Resignation occurs when an employee gives notice of their intention to stop working for you on a particular date.

About Resignation

Resignation is a natural event in every workplace and is to be expected from time to time;

Employees have a legal right to resign after giving the required notice, and you can’t prevent them from doing so

Employees can resign for various reasons, including new opportunities, illness or family obligations

Resignation may affect your workload and create extra financial pressures (such as paying out annual leave and holiday pay in a lump sum)

Any resignation must be handled according to relevant clauses in the employee’s employment agreement

Handling a Resignation – The Basics

First check the employee’s employment agreement to see what notice they need to give (is it verbal or written, and what is the notice period in days/weeks)?

Confirm verbally then get the employee to provide their notice in writing

If you accept their resignation verbally, put this in writing as soon as possible

Check to see if there is a clause that penalises the employee in some way

(e.g.) If they give you a shorter notice period than stated in their employment agreement can you deduct an amount from their pay or require them to work out the full notice period)?

You can agree a shorter notice period with a resigning employee but should ensure you record this in writing.

How can resignation affect the Workplace?

A shift in workplace dynamics

A sudden increase in workload for other employees

Fewer employees for a period of time until the resigning employee is replaced

New recruits

Increased cost and administration in undertaking a hiring process

Consequences of short notice are;

A shift in workplace dynamics

Shortage of staff for a time

Increases the workload of other staff until the vacant position is filled

Penalty deterrent to short notice

Penalties, which allow the employer to deduct

The shortfall in notice period given in writing

From the employees final wages

Are a good way of stopping employees resigning and leaving suddenly

Heat of the moment resignations

If an employee resigns in the heat of the moment;

Do not accept it immediately

Give them time to cool down (at least 24 hours)

Then check if they really intended to resign

Encourage discussion about their resignation but don’t put pressure on them

Only after you are sure the employee does not intend to return should you ask them to confirm their resignation in writing

Other matters

Ensure the employee is aware of clauses in their contract that

Survive the ending of employment like
o Confidentiality
o Restraint of Trade
o Intellectual Property (IP)

Ensure the employee returns all keys and company property before leaving

Take extra care around a sudden resignation if an employee is being investigated for poor performance or misconduct (you may need to seek legal advice in this situation)

Reach out to Resolve Legal if You Are unsure on your employment rights

You don’t have to go through this challenging time alone. Our legal team will guide you through the process of raising a bullying claim and change your life for the better.

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