The parties
The parties to this employment agreement are:
Position
The employee is being employed as Commercial Property Manager.
Duties
The employee’s general duties and responsibilities are set out in the job description attached to this agreement. Their duties include carrying out all instructions the employer gives them (as long as the instructions are lawful and reasonable).
Minor changes can be made by agreement or by the employer, after a discussion in good faith. However, if major changes to the job are proposed, this must be done through a restructuring process.
The employee will work for the employer for a fixed period of time.
Employment will start on 01/07/2017 and end after 12 months when Bernadine Handlee who is on parental leave reports back. It will automatically end without notice or pay instead of notice, unless the employer or the employee ends it earlier in line with this agreement.
The employer and employee agree there is a genuine reason for the fixed term and for employment to finish when the term ends. The reason for it being fixed term, and finishing at the end of the term, is <<type a detailed reason, see Tips for help>>.
The employer has explained why employment will finish when the term ends, and the employee has had a chance to get advice on this.
The employee has the legal right to work in New Zealand.
Trial period
The first 90 days of employment will be a trial period, starting from the first day of work.
During the trial period, the employer may dismiss the employee. Notice must be given within the trial period. Depending on how long the notice period is, the last day of employment may be before, at, or after the end of the trial period.
During the trial period, the employer’s normal notice period doesn’t apply. Instead, either the employee or the employer may end this agreement by giving 2 weeks notice before the trial period ends. The employer might decide to pay the employee not to work. For serious misconduct, the employee may be dismissed without notice.
If dismissed during the trial period, the employee cannot bring a personal grievance or other legal proceedings about the dismissal. They may still bring a personal grievance if they feel the employer has treated them unfairly for other reasons, eg discrimination, harassment or unjustified disadvantage.
During the trial period, the employer and employee must treat each other in good faith
Terms
Place of work
The employee’s main place of work will be Shopping Complex.
The employer may ask the employee to travel for work from time to time, but they don’t have to agree.
Hours of work
The employee will work for 47.5 hours each week on Monday to Friday, between the hours of 9: OO A:M – 5:30 PM.
Breaks
The employee is entitled to:
If work demands or circumstances change, the employer has the right to negotiate with the employee to change break times. The employer will offer reasonable compensation if breaks cannot reasonably be given.
Rules, policies & procedures
The employer has policies and procedures that relate to the employee’s job.
The employer will make the employee aware of the policies and procedures, and will make sure they are available to the employee. The employee must be familiar with these rules and follow them at all times.
The employer may introduce new policies or procedures, or change or cancel existing ones, but must give reasonable notice of any changes.
If the employee doesn’t follow the policies and procedures, the employer might take disciplinary action.
The business requires employees to meet personal presentation requirements.
Remuneration and Benefits
Payment of wages
The employee will be paid a gross annual salary of $75,000.00, which covers all the time worked.
The employee will be paid monthly by cheque.
The employer may change how often the employee is paid, and will give notice in writing.
KiwiSaver
The employee agrees that their base pay includes all compulsory employer contributions to their KiwiSaver. The employer’s contribution will be deducted from their pay, as required, currently at a rate of 3%. The employee must decide how much their own contributions will be (3%, 4% or 8%) and the employer will also deduct this from their pay. If the employee does not specify this, the default rate is 3%.
The employee and employer agree that all employer superannuation contributions will be treated as salary/wages and taxed via PAYE. The employee can cancel this arrangement in writing at any time.
The employee can opt out of KiwiSaver between 14 and 56 days after their first day of employment.
Vehicle
The employee agrees to use their own vehicle for work purposes. The vehicle must be road-worthy, warranted and registered by the employee at all times. The employee is responsible for maintenance and running costs.
The employer will pay back the employee for work-related expenses at the Inland Revenue mileage rate. The employee is responsible for any parking or traffic fines, as well as fuel costs associated with their personal use.
The employee must have a valid driver licence of the relevant class and follow the employer’s vehicle policies, and comply with all relevant traffic laws.
Pay review
The employee’s pay may be increased based on reviews the employer carries out six monthly. The employee’s performance and the employer’s financial position may be considered during any review.
Any increase to the employee’s pay is a decision for the employer only.
Leave
Public holidays
The employer may ask the employee to work on a public holiday, but they don’t have to agree. The employee agrees not to work on any public holiday unless asked to do so.
If the employee doesn’t work on a public holiday, they will get a paid day off if a public holiday falls on a day that would otherwise be a working day for them. If the employee works on a public holiday:
Annual leave
The employee will get annual leave of 4 weeks each year once they have worked for the employer for 12 months.
The employee can take leave in advance with the employer’s agreement. Any unearned leave taken in advance must be repaid if the employee stops working for the employer.
Leave will be taken at times the employee and employer agree together. If they cannot agree, the employer will decide the dates and give the employee at least 14 days’ notice.
Sick leave
The employee can take up to 25 paid days off a year due to illness or injury, or to care for their partner or another dependent person who is sick or injured. This leave will be available as soon as they start work.
They must tell their manager if they are going to be on sick leave as soon as they can (before their usual start time, if possible).
The employee can build up 20 days of untaken sick leave. The employer will not pay the employee for unused sick leave when their employment ends.
If the employee has used all available sick days, the employer might let them take sick leave in advance or annual leave.
The employer may require proof of sickness or injury at any time if the employee takes, or has asked for, sick leave. The employer will tell the employee as soon as possible that proof is required.
If the employee has been sick or injured for three or more calendar days in a row — or is taking sick leave that is more than the legal minimum — the employee must get a medical certificate at their own cost.
If the employee has been sick or injured for less than three full days in a row, the employer pays for the employee to get a medical certificate.
Unpaid leave
The employee may ask for time off without pay for any reason, and the employer will consider the request.
Indemnity
The employer will, as much as legally required, cover the employee for costs or other liabilities they face, so long as they were doing their job properly and with reasonable skill and care at the time.
This does not include expenses or liabilities faced by the employee because of:
Health & safety
The employer and employee will meet their obligations under the Health and Safety at Work Act.
The employer’s duties include:
The employee will follow the employer’s health and safety rules and procedures. The employee will take reasonable care to look after their own health and safety at work, their fitness for work, and the health and safety of others.
Examples of how the employee can take reasonable care include:
The employee must report any potential risks, incidents and near misses so the employer can investigate, and eliminate or minimise harm or risk of harm.
Failure to follow reasonable health and safety rules may be considered serious misconduct.
Personal protective equipment
The work being done by the employee may involve risks to their health and safety from time to time for which personal protective equipment (PPE) must be used or worn.
The employer will provide suitable PPE, as well as training and information about how it must be used or worn, where it is stored, and how it is maintained.
If the employer agrees in advance, the employee can choose to provide their own PPE at the employer’s cost for genuine reasons of comfort and convenience. The employer must be satisfied that this PPE is suitable and:
The employee must take all reasonable care at all times when dealing with risks. They must use or wear PPE when appropriate. At all times, the employee must follow the employer’s health and safety policies and use safe and appropriate practices.
Failure to use or wear PPE as instructed may be considered serious misconduct.
Drug & alcohol testing
To make sure the work environment is safe and healthy, the employer may carry out drug and alcohol testing in the following situations:
A reliable external agency will carry out the testing.
The employee agrees to:
If the employee does not meet any of these requirements, this might be considered serious misconduct.
Changes to this agreement
The employer and employee can agree to change the terms of this agreement at any time. Any changes must be in writing and agreed to by both employer and employee.
Confidentiality
The employee agrees to keep confidential information private. Except as part of the proper performance of their job, the employee will not directly or indirectly use, copy, share, or permit the use or copying of any confidential information owned by the employer unless they get written permission.
Confidential information means all information owned by the employer that is not in the public domain, and which the employer reasonably regards as private. It includes, but is not limited, to:
The requirement for confidentiality applies at all times while the employee works for this employer, and after the employment has ended.
Medical examination
The employer may ask the employee to be examined by a registered medical practitioner, at the employer’s cost.
This will only happen if the employer has reasonable grounds to ask for further medical information to help them understand one or more of these points:
The employee may refuse to have the medical examination or allow the relevant results to be shared. If this happens, the employer may act on their concerns based on the information available to them.
Internet & social media use
The employee will have internet access as part of their job. Use must not be offensive, illegal or harm the employer’s interests, and must follow the employer’s policies.
Any business social media or email accounts, and associated followers or contacts, are the employer’s property.
A reasonable level of personal internet use at work is acceptable if it does not affect the employee’s ability to do their job.
Conflict of interest
The employee agrees that they have disclosed all known potential conflicts of interest.
If the employee becomes aware of any potential conflict between their interests and the employer’s business, or an issue with the potential to affect their work performance, they must immediately tell the employer.
The employer and employee will discuss the issue and work out together whether it is a real conflict of interest.
The employee must act on any reasonable instructions from the employer about real conflicts of interest. If there is no other reasonable alternative, the employee’s employment may be ended, following the correct process.
Severability
If any clause no longer applies, eg if a court rules it invalid, the rest of the agreement will remain in place. The employment agreement will continue as if that clause had not existed.
If the Employment Relations Authority or the Employment Court changes a clause, their version of the clause will be used in the employment agreement.
Disputes
A problem between the employer and employee might be a personal grievance, dispute or other issue.
If the employee has any concerns about their employment, or how they are treated at work, they should tell the employer as soon as possible so these can be resolved. The first step is for the employee and employer to talk about the problem and try to find possible solutions.
If the problem cannot be resolved, the employee or the employer can seek help from an external party, eg one or more of the following:
If it cannot be resolved at mediation, the employee or employer might want to go to the Employment Relations Authority.
If it is a personal grievance, the employee has 90 days from the time the problem occurred, or became known by the employee, to raise the grievance with the employer.
Some of these steps may come at a cost.
The employee can invite a support person or representative to attend all steps in the process.
Termination
Employee protection provision
Employees are entitled to certain protections in restructuring situations set out in the Employment Relations Act.
Vulnerable workers
Some employees who do certain jobs, as set out in the Employment Relations Act Schedule 1A, can have their jobs transferred to the new employer. This happens if their work is to be performed by the new employer, unless the new employer is exempt.
Their rights and entitlements are set out in Subpart 1 of Part 6A of the Act.
All other employees
This clause applies in the event that the employer proposes to restructure (as defined in section 69OI of the Employment Relations Act 2000), and the work the employee performs may or will be performed for or by a new employer.
The employer will start talks as soon as they can with the new employer about the impact of the restructuring on the employee. This will include negotiating whether the employee can transfer to the new employer, and if so, whether this will be on the same terms and conditions.
The employer will:
Whether the employee is offered ongoing employment, and on what terms and conditions, will ultimately be the decision of the new employer.
If the employee does not transfer to the new employer, the employer will determine what entitlements (if any) are available to the employee by discussing with the employee:
The employer will consider the employee’s comments and confirm in writing the outcome of these discussions to the employee.
Redundancy
Redundancy is when an employee’s role is no longer required. Although the employee is on a fixed-term agreement, there could be circumstances that mean their role might no longer be needed before the term has ended.
If after following a good faith restructuring process the employee is made redundant, they will be given notice as set out in Ending employment. They will be paid up to their last day at work, but not for the remainder of the fixed term.
They will get redundancy compensation of $40,000.00. However, if the employer or the new employer (in the case of restructuring as defined in section 69OI of the Employment Relations Act 2000) offers another suitable role on generally the same or better terms and conditions — or any role with terms and conditions the employee accepts — then the employee will not get redundancy compensation or other redundancy entitlements, whether they accept the role or not.
Abandoning employment
If the employee is away from work for 15 working days in a row without telling the employer or getting their permission — and the employer has made reasonable efforts to contact the employee to clarify the reason for their absence and whether they intend to return to work — the employer may regard the employment as abandoned.
The employer will tell the employee that they are deemed to have ended their employment. The employment will be deemed to have finished at the end of the last day the employee worked.
Ending employment: Serious misconduct
If, after following a fair process, the employer concludes that the employee has engaged in serious misconduct, the employee may be dismissed without notice.
Serious misconduct is behaviour that fundamentally compromises the employer’s trust and confidence in the employee. Serious misconduct includes, but is not limited to:
Ending employment: Medical
If the employer believes on reasonable grounds that the employee is not able to do their job because of a condition, illness or injury, and will not be able to resume their job within a reasonable timeframe, the employer may end the employee’s employment by giving at least 4 notice.
Before doing so, the employer will:
Suspension
The employer might decide to suspend the employee on pay while investigating allegations against the employee, eg for serious misconduct, or if a condition, illness or injury means the employee poses an immediate risk to themselves and/or others.
If an investigation is delayed because the employee refuses to take part, or because of other reasons beyond the employer’s control, eg waiting for a criminal trial to end, the employer may decide any further time on suspension will be unpaid.
Force majeure
The employee understands and agrees that their job may end without notice, or payment of notice, if a natural disaster, workplace fire, flood or other similar major event beyond the employer’s control makes it impossible for employment to continue. Where practicable, the employer will consult with the employee before exercising this clause.
Ending employment
The employer might end the employee’s job with reasonable cause, or the employee might resign.
Unless otherwise set out in this agreement, either the employer or the employee can end employment by giving four weeks’ notice in writing.
The employer may decide to pay the employee instead of them working out their notice period.
If the employee does not give the agreed amount of notice, the employer might be able to claim a breach of this agreement.
After notice is given, the employer and employee will discuss the kind of duties the employee will be expected to carry out during the notice period. This may include a change in duties or being paid to not work (also known as “garden leave”).
Nothing in this clause prevents the employer from ending the employee’s employment without notice, or payment instead of notice, for serious misconduct or other reason provided for in this agreement.
Ending employment: Duties
The employee must immediately return any of the employer’s property and information on or before their final day of employment.
This includes, but is not limited to, any hard and soft copy files, confidential information, IT devices, access cards, keys, vehicles and workplace equipment, eg tools or PPE. The employee must also stop using passwords and codes for the employer’s systems.
Acknowledgement
Employee acknowledgement
In signing this agreement, I Sachin Dev accept the terms and conditions of my employment as detailed within this offer and declare that:
The agreement that has been entered into is between Brilliant Real Estate hereby known as the employer and Sachin Dev referred to as the employee taking up the role of the commercial property manager. There are a number of clauses of the law that have been adopted in drafting the agreement in order to ensure that the terms that have been entered into are within it. It is essential to note and point out that the Employment Relations Act 2000 has identified a number of rules that all employers and employees must abide with. One of the laws that are have been stated by the piece of legislation is that of ensuring that all contracts that are entered into between the employer and the employee must be in writing. This is important since it ensures that the facts of the contract can be reviewed at a later date in any case the need arises. There have been several cases whereby neither the employee nor the employer have presented the terms of contract when an issue arises thus making it difficult for the courts to rule on the issue. It is important to understand that this clause does not only benefit the employee but also the employer since they will be able to refer to their agreement in any case one party feels that they are being short changed.
Section 67A also states that an employee can employ the employer on a trial period that does not exceed a period of 90 days. This clause has also been adopted in the agreement in which the employer will work for a period of 90 days while the employer supervises their work to conclude whether they are fit for the job or not. This is a very important clause in order to ensure that the company does not bind itself to an employee who is not skilled. This would harm the activities of the company and even may lead to losses. However, there are a number of things that the agreement took into consideration before entering the clause. One of the issues that were determined was whether or not Sachin had worked for the company earlier on. In this case, the employer had not worked for the employer and therefore held the right to ensure that they gave him a 90 day trial period. This move is also important to the employer since it will be possible for them to decide whether they are willing to work under the terms and conditions that are provided for by the company. It is important to note that employee satisfaction is also a very important aspect of success. In any case one party is not willing to work with the other party, there have been given to option to offer a notice of not less than two weeks. This is important since it will help both parties plan ahead of the exit.
The other key doctrine that has been embodied in this agreement as per the New Zealand employment laws of 2000 is that of good faith (Zimmerman & Whittaker, 2000). It is essential to understand that the agreement that has been entered into by the two parties is in good faith that both parties will work to promote and ensure that none of them goes against the spirit being promoted (Wilson, 2015). It must be understood that the employee must understand that there is an inherent in quality of power and must be willing to ensure that the same is promoted by respecting their employer. Good behavior while on employment is required by the legislation and in any case that the same is not upheld it is important to understand that the necessary legal measures can be undertaken by either of the parties (Cai, 2015).
It must also be understood that the agreement that has been entered into is a fixed term type of employment (Boockman & Hagen, 2013). In this type of employment, the employee must understand that the employment contract is terminated a period of time or the occurrence of an event (Heponiemi et al., 2013). In this case, it must be noted that the employer has only been offered an employment of not more than 12 years until the former employee who is on parental leave reports back. In this case, the employment terms are terminated as soon as the 12 months are over until another agreement is entered into if the employer views the same necessary (Auer & Cazes, 2000).
The other clause from the act that has been adopted by the law is that of ensuring that Sachin does receive the minimum wage as per the law as well as paid a paid leave (Van Zyl, 2017). The employee has been offered a 25 day paid leave annually which is in line with the law. It is essential to understand that the employee can request to have their leave days distributed throughout out the years or have them used up in a sitting. The agreement has also provided for it terms in which the employee can be dismissed. In any case the employee infringed the terms of employment or is reported of gross misconduct the same can happen. I hope you find the above reasons above considerate for the agreement.
Part B RESTRAINT OF TRADE
TASK TWO PART A
Issue
The issues that are being raised by the case are whether or not the company should pay the vehicle company for the vehicle that was wrecked by John. According to facts given, John had bought a vehicle on loan guaranteed by her mother. However, the mother was not registered as a director of the company but only that the same addressed in her businesses card. John who had agreed to pay for the loan while on job decided to quit his job and pursue another field thus leaving the company to seek for other alternatives in recovering their money.
Rules
There are a number of rules that apply in this scenario. One of the rules that emerge is whether minors can enter into contracts. The rule that is identified in this scenario is that of lying while entering into a contract. It is important to understand that although, the law prohibits entering a contract with a minor, there are a number of factors that can first be observed. In this case, the minor seemed to be able to sustain their lifestyle since he was under apprenticeship and earning a salary that would be able to pay for the car. The other issue that has been identified is that of misrepresentation, in this case, the mother lied to the loan company that she was a director at the company. In this case, the courts can demand that she reimburse the company by repaying the loan from her pockets.
Analysis
In it is important to understand some of the rules and how they can be implemented in different scenarios. In this case we can observe that john was unable to repay the loan and being a minor and unable to repay his loan the guarantors were to be sought. However, the company cannot guarantee to repay the loan since the person who signed the papers is not a director. Therefore the court has the power to ensure that the company does not suffer losses by demanding that she pays the loan.
Conclusion
It is essential to clarify a number of things before entering into a contract with a minor in order to ensure that no problems are entered into. If the company had undertaken a follow up no problems would be encountered when trying to recover the loan.
Issue
The issue in this case that of the estate agent under valuing Grace’s property. The Estate agent had approached the lady and offered to be her estate agent in order to sell the house. However, after the lady agreeing to sell the house to a buyer who was brought in by the agent, it was later discovered that the agent had undervalued the house and the lady’s daughter wanted to sue for unconscionable bargain.
Rule
The rule of this case was that of requiring knowing what the claim of unconscionable bargain is that which one party is disadvantaged. There are a number of reasons as to why parties may enter into such bargains. One of the reasons is that of being of having unequal bargaining power. This is if the person has no sufficient knowledge about a particular issue and the other party decides to take advantage of the same.
Analysis
In this case, we can see that the agent took advantage of the lady because of her old age and ignorance on the issue and decided to undervalue the house. In this case therefore, the daughter can sue the real estate and request for refund of the amount that was undervalued.
Conclusion
In conclusion, it is important to understand that there are a number of factors that are to be considered when entering into a contract. Ensuring that one does not take advantage of the other party is one of the factors that can be considered to ensure fairness.
Reference
Miller, L, (2014), Understanding Commercial Law (8th ed) LexisNexis. Chapter 14, pages 205 – 211.
Hubbard, J, Thomas, C, and Varnham, S, Principles of Law for New Zealand Business Students (5th ed) Auckland: Pearson,
Wilson, T. (2015). The Challenges of Good Faith in Contract Law Codification.
Cai, W. (2015). The Relationship between a Duty of Good Faith and Implied Terms in English Contract Law. Exeter Student L. Rev., 1,
Zimmermann, R., & Whittaker, S. (Eds.). (2000). Good faith in European contract law (Vol. 2). Cambridge: Cambridge university press.
Boockmann, B., & Hagen, T. (2013). Works councils and fixed-term employment: Evidence from West German establishments.
Heponiemi, T., Elovainio, M., Kouvonen, A., Noro, A., Finne-Soveri, H., & Sinervo, T. (2013). Can organizational justice mitigate the negative effects of shift work and fixed-term employment?. European Journal of Work and Organizational Psychology, 22(2), 194-202.
Auer, P., & Cazes, S. (2000). The resilience of the long?term employment relationship: evidence from the industrialized countries. International labour review, 139(4), 379-408.
Van Zyl, B. (2017). Enforcing a restraint of trade: legal-just in case.
Hillman, R. (2013). Principles of Contract Law, 3d (Concise Hornbook Series). West Academic.
Poole, J. (2016). Textbook on contract law. Oxford University Press.
Mekki, M. (2015). The General Principles of Contract Law in the Ordonnance on the Reform of Contract Law. La. L. Rev., 76, 1193.
Smits, J. M. (2014). Contract law: a comparative introduction. Edward Elgar Publishing.
Golding, G., & Howe, J. (2015). Book Review: The Contract of Employment by Mark Irving
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