Do annual leave and sick leave have different entitlement dates?

Employees’ entitlement for sick leave occurs after 6 months of continuous employment with the same employer. The amount of sick leave is determined in the employment agreement and the minimum requirement is 5 days per year. The second entitlement of sick leave is after 18 months of continuous employment. Sick leave may be granted in the first six months of employment with agreement of the employer.

The entitlement for annual leave occurs after 12 months of continuous employment with the same employer and at the end of each subsequent 12 months continuous employment. The minimum entitlement is four weeks per year but the entitlement will be specified in the employment agreement. Annual leave accruing during the year can be taken at the discretion of the employer.

Can an employee be entitled to Public Holidays after their employment has ended?

If the employee has annual leave owing then this entitlement is added after their last day of work. Should a public holiday fall in the period of annual leave, and it is a day that is normally worked, then the employee is entitled to be paid for that day.

When has an employee abandoned their employment?

There is nothing within employment legislation that specifies the number of days an employee is absent before an employee is deemed to have abandoned their role.

Prior to determining that an employee has abandoned their employment, an employer must make every attempt to contact the employee to determine if there is a valid reason for the absence. As with all employment matters they should be entered into with an open mind, taking into account:

• Medical certificates
• Employees employment history
• Information from relevant sources e.g. family members

Check the employment agreement for a clause which may state a number (typically three ) of days unauthorised absence, after which an employee may be required to provide a medical certificate, undergo a medical examination or the employees employment may be terminated. This clause should not be relied upon to dismiss an employee, even if an employee has agreed to it. An employer must always act in a fair and reasonable manner, and should always follow the correct process be it disciplinary or dismissal.

How often should an employee get a performance review or pay rise?

It would be good practice for an employer and employee to have a good understanding of how and when performance appraisals and pay reviews are conducted. There should be some process for feedback and performance appraisals which may or may not be tied in some way to pay review.

An employer is under no specific legal obligation to provide a pay rise (over and above the statutory minimum wage) unless it is specified in the employment agreement. If an employee requests a pay rise, their employer must consider and respond to the request in good faith.

When do I have to give a warning or when can I just dismiss?

Before undertaking any disciplinary process check the employment agreement or any practice policy that you may have and follow the steps outlined. If you have employee dispute cover contact your insurance provider and inform them of the circumstances.

In cases of serious misconduct you may be able to summarily dismiss the employee but this will still require a fair and reasonable process; what defines serious misconduct may be outlined in the employment agreement.

In other less serious cases after following the disciplinary process of investigation and meeting with the employee and their representative to hear their response to the allegations against them. After due consideration, you may decide to issue the employee with a formal warning. This should be recorded in writing and placed in their personnel file. If the employee makes the same transgression you may decide after going through the disciplinary process that termination of employment is the solution.

One of my staff members isn’t performing can I make them redundant?

Only roles can be made redundant, not staff members - and there has to be a sound business case to substantiate it. Restructuring or redundancy should never be used as a performance management tool. If you have a poor performing staff member meet with them to express your concerns and work on a performance improvement plan together, monitor the progress and if there is none, then start the disciplinary process.

All the people I employ are my friends why do I need an employment agreement?

Under the Employment Relations Act 2000 it is a legislative requirement for all employees to have a written employment agreement. There are substantial fines for a breach of the Act.

When things are going well, apart from the legislative requirement, you may not see the need for an employment agreement, but when things start to go awry it is the first place to turn to see what the terms and conditions were agreed to on employment.

I gave my new employee her written employment agreement to take away for advice; she has been employed for 2 weeks and still hasn’t returned it.

Even though she hasn’t signed the agreement it would form the basis of the terms and conditions of her employment, in the absence of her stating that she has any areas of concern. Employment agreements should be signed prior to a new employee commencing work. If you have agreed to include a 90 day trial period clause in the agreement, the signing and dating of the agreement after the employee commenced employment may lead to the finding that the employee was not a new employee as they had worked for the employer prior to the date of the employment agreement being signed. The Employment Court has recently made such a judgement. More information is available on the Dept of Labour Website .