Most employment agreements contain a clause which states that if a employee is absent without permission, or without notifying the employer, or without good cause for a specified number of working days, he/she is deemed to have terminated his/her employment by reason of abandonment. This provision is subject to appeal if the employee is able to provide a valid reason for being unable to notify the employer of his/her absence.

Note: In all cases of this type, the relevant agreement clause should be carefully consulted.

For reasons of wage payment, various employment agreements specify what they define as an adult employee. This is especially important in distinguishing between those entitled to full adult wages and those on youth rates where the agreement contains a provision allowing lesser payments for younger employees. The Minimum Wage Act sets minimum rates of pay for employees 16 years and over. There is also a lower minimum rate for employees who are 16 or 17 years of age who have not completed 3 months or 200 hours of employment, whichever is the shorter.

In a general sense, this means the process of making a decision in settlement of a dispute between two or more parties. In a specific employment relations sense “arbitration” refers to the procedure by which the Employment Relations Authority makes a decision in a dispute or personal grievance case.

In a specific employment relations sense, this term means outstanding debts on wages caused by the previous underpayment or non-payment of the employee. Section 131 of the Employment Relations Act contains a procedure for the recovery of any arrears of wages.

Average daily pay is defined as “the employee’s gross earnings for the 52 weeks before the end of the pay period immediately before the calculation is made, divided by the number of whole or part days during which the employee earned those earnings, including any day on which the employee was on paid leave, but excluding any day on which the employee did not actually work”.

The old name for a collective employment agreement negotiated by a union and two or more employers under the Labour Relations Act 1987 (now repealed) setting the terms and conditions of employment for the employees it covered.

This is the term used in connection with the former Employment Contracts Act 1991 (now repealed) to describe the representative appointed by an employee or an employer to conduct negotiations on his/her behalf. It could include a delegate, a union representative, an external consultant, a lawyer or a specialised agency.

Bullying is unwanted and unwarranted behaviour that a person finds offensive, intimidating, degrading, insulting, or humiliating and is repeated so as to have a detrimental effect upon a person’s dignity, safety, and well-being.

In a general sense, casual work means employment of a short-term, irregular or on-call nature, which becomes available on an occasional basis. Commonly casual work is regarded as being for a day or a few days at a time. The rate of payment for casuals in employment agreements is usually the appropriate hourly rate. Care must be taken to check the relevant agreement clause in all situations involving casuals.

A party nominated in writing for coverage under a particular employment agreement.

This term refers to the process by which an employment agreement is reached as a result of negotiations between one or more employers and one or more unions on behalf of two or more employees, who have combined for the purposes of negotiating collectively rather than as individual employees. 

Case law, i.e. determined by Court Judgements.

Underlying any IEA or CA negotiated under the Employment Relations Act, all employees have a Common Law contract of employment which forms the fundamental legal basis of the relationship between every employee and his/her employer.

An order under Section 137 of the Employment Relations Act requiring another party to comply with the requirements of a contract, Act of Parliament, Court decision or decision of the Employment Relations Authority.

In a general sense, this term refers to the process of bringing harmony to disputing parties by resolving the differences between them.

This term refers to a situation where an employer, rather than actually dismissing an employee, forces the individual to resign by either requesting a resignation or putting the employee in circumstances where he/she has no option but to resign, i.e. resignations under pressure that, in effect, are tantamount to dismissal. Some employers adopt this technique in the mistaken belief that it will avoid any personal grievance action for unjustified dismissal.

Under the Employment Relations Act 2000, there are two types of employment agreement:

A Collective Agreement (CA) – an employment agreement that is binding on one or more employers and one or more unions representing two or more employees, negotiated pursuant to Section 42 of the Act.

An Individual Employment Agreement (IEA) – an employment agreement that is binding on only one employer and one employee, negotiated pursuant to Section 60 of the Act. 

A clause in the CA which specifies to whom the document applies. Together with other clauses on the “application of the document” and “scope of the document”, this clause determines the specific employer(s), union(s) and employees on whom the document is binding.

Note: Under the Employment Relations Act the coverage of a CA must be defined by reference to the type of work that the CA covers and not the names of the employees on whom it is binding. 

Coverage refers to the so-called membership rule which defines the occupational groups eligible to join a particular union.

This term refers to the habitual or historical way of doing things, i.e. performance of a particular job or task. This is one of the aspects examined by the Employment Court when resolving complex issues.

Failure to act or appear as required. This term usually refers to an employee’s absenteeism which, thereby, entitles the employer to make a rateable deduction from the individual’s wages for that day.

A payment that the employer is not bound, by the employee’s employment agreement, to pay the employee.

Note: A discretionary payment does not include a payment that the employer is bound, by the employee’s employment agreement, to pay the employee, even though the amount to be paid is not specified in that employment agreement and the employer may determine the amount to be paid; or the payment is only made if certain conditions are met.

The act of setting up exceptional treatment for or against someone. In a specific employment relations sense, the term has negative connotations and means unlawful discrimination in employment matters in breach of either the Human Rights Act, personal grievance provisions, Parental Leave and Employment Protection Act, or any other piece of legislation designed to protect the interests of some minority or target group.

Termination of employment can either be by the employee (by resignation) or by the employer (by dismissal). Dismissal is, therefore, the act by an employer of discontinuing an employee’s employment. Dismissal can either be without notice (summary or instant dismissal) for serious cases of misconduct by the employee; or dismissal on notice, where the employee is given advance notification of the employer’s intention to discontinue employment, eg. for reason of redundancy or unsatisfactory performance.

Action in dismissing an employee which cannot be justified on the facts, or in fairness, equity and good conscience; unwarranted, without adequate grounds. In other words, dismissal without “good cause” and without adherence to the principles of procedural fairness.

Under common law a dismissal is wrongful if it is in breach of either the express or implied terms of the employment contract. However, this term is now obsolete because it has been superseded in its entirety by the unjustifiable dismissal provisions of the Employment Relations Act.

A dismissal is illegal if it in some way breaches an Act of Parliament. However, this term is now obsolete because it has been superseded in its entirety by the unjustifiable dismissal provisions of the Employment Relations Act.

A dispute is defined in the Employment Relations Act 2000 as being about the interpretation, application or operation of an employment agreement (by definition, this does not include a personal grievance).

Under the Employment Relations Act, duress is defined as being undue influence or pressure applied to a person in connection with that person’s decision to either join or not join a union.

An employee is anyone who has agreed to be employed, under a contract of service, to work for some form of payment. This can include wages, salary, commission and piece rates.

This includes:

• homeworkers
• people who have been offered and have accepted a job
• fixed-term employees
• seasonal employees
• casual and part-time employees
• employees on probationary and trial periods.

An employee is not:

• a self-employed or independent contractor
• a sharemilker
• a real estate agent whose agreement says they are an independent contractor
• a volunteer who does not receive a reward for working
• in some cases, a person who is engaged in film production.

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A general term used to describe a collective employment agreement between one or more unions on behalf of two or more employees and one employer covering a particular company or organisation.

Under the Employment Relations Act, certain business operations are deemed to be “essential services” and accordingly, are subject to the requirement to give notice of any intended strike or lockout action. These “essential services” are defined in Schedule One of Employment Relations Act 2000.

In the following business operations, fourteen days’ notice of any intended strike or lockout action must be given:

• Operation of hospitals, welfare institutions and psychiatric hospitals.
• Production, processing or supply of gas or petroleum.
• Production or supply of electricity.
• Supply of water and disposal of sewage.
• Production of butter, cheese or other milk products.
• Slaughtering or sale of meat for domestic or export consumption.
• Police, fire, prison and ambulance services.
• Inter-island sea transport.
• Services connected with berthage and departure of ships.
• Public air transport services.
• Manufacture or supply of certain medicines, surgical or dialysis solutions.

In the following business operations, three days’ notice of any intended strike or lockout action must be given:

• Holding and preparation of sheep, cattle, goats, pigs, or deer for slaughtering, the slaughtering of such animals, and their subsequent processing.
• Meat inspection services.

An ex gratia payment is one made in the absence of any legal obligation to make such a payment. Ex gratia translated is “as a matter of favour”.

The prevention of the carrying out of the contract e.g. by act of God. A contract of employment is said to have been frustrated when the law recognises that without default of either party, the contractual obligation has become incapable of being performed by reason of a radical change in circumstances, e.g. a change in the law, call-up on military service or where events make it physically impossible for the contract to be performed, e.g. imprisonment or prolonged, indefinite absence due to illness or injury.

Note: Because an employment agreement relates to personal performance, absence due to prolonged illness or injury may constitute frustration – where frustration is apparent, the contractual obligations mutually end, the parties are excused performance, and in general have no claim against each other.

In specific employment relations sense “good cause” means having sufficient reason to justify the termination of an employee’s employment. Court decisions have shown that to have “good cause” an employer will have to demonstrate strong evidence of either:

• Serious misconduct; or
• Repeated instances of less serious misconduct (following the issuing of warnings); or
• Persistent poor performance (following the issuing of warnings); or
• Genuine redundancy

Gross earnings (as defined in the Holidays Act 2003) means all payments to an employee including salary/wages, allowances (excluding non-taxable reimbursing payments), holiday pay, pay for other leave, productivity or incentive payment (including commission), overtime, first week’s ACC payment and the cash value of any board or lodgings provided by the employer.

However, the definition excludes any discretionary payments, payments received from the Accident Compensation Corporation and reimbursement payments.

Note: a discretionary payment does not include a payment that the employer is bound by the employment agreement to pay, even though the amount to be paid is not specified and the employer may determine the amount, or the employer is required to make the payment only if certain conditions are met. 

The process of introducing and establishing a new employee into the organisation.

A writ issued by the Employment Court by which the cited party is commanded not to do, or to cease from doing or to continue doing, some act not amounting to a crime. They are either interlocutory (provisional) until the hearing of the case or perpetual (permanent).

Usually the Court is asked to issue an injunction to restrain any person from breach of any duty incumbent on him/her, e.g. in an industrial dispute, an injunction could be sought in an attempt to prevent union members taking industrial action in breach of the law.

In a general sense intimidation means to over-awe someone with fear in order to influence their conduct. In a specific employment relations sense, intimidation refers to coercion of another person by threats (whether verbal or physical) into doing or not doing something against his/her wishes. This can result from threatening behaviour consisting of comments, insults, staring (“eyeballing”), standing over someone or actually making physical contact with them in an aggressive manner. Intimidation of this sort is misconduct which will be dealt with through the formal disciplinary procedure.

A general term used to describe the situation when an employer discontinues the employment of one or more employees either temporarily (suspension) or permanently (redundancy).

A lockout is a form of industrial action taken by an employer in which the employer discontinues the employment of employees by closing the place of business or refusing to make work available. For the technical definition of a lockout see Section 82 of the Employment Relations Act.

In a general sense, this term refers to the process of acting as an intermediary or go-between to find common ground as the basis for settling a dispute. In a specific employment relations sense, the term refers to the work of mediators of the Mediation Service who are charged with the responsibility of assisting employers and employees to establish and maintain harmonious employment relations and who do so principally by providing mediation services to assist in resolving employment relationship problems. 

In an employment relations sense, this term describes the situation where a prospective employee falsely claims to have some skill or attribute sought by an employer as a qualification for a particular position. If the employer subsequently discovers the person does not have the requisite qualifications as claimed, he/she has grounds to automatically discontinue the employment because of the employee’s misrepresentation. Misrepresentation can also apply where the employee gives other false information when applying for a job or fails to fully disclose relevant information in response to a specific question.

In an employment relations sense, to give notice usually means to give prior notification of an intention to discontinue employment by either the employer (dismissal) or the employee (resignation). This may be either orally or in writing.

Ordinary weekly pay (as defined in the Holidays Act 2003) means the amount of pay the employee receives for an ordinary working week and includes productivity or incentive payments if they are a regular part of the employee’s pay, overtime payments that are a regular part of the employee’s pay and the cash value of any board or lodging provided by the employer.

However the definition excludes irregular productivity or incentive payments (one-offs), any other exceptional one-off payments and discretionary payments the employer is not bound to pay under the relevant employment agreement.

Note: a discretionary payment does not include a payment that the employer is bound by the employment agreement to pay, even though the amount to be paid is not specified and the employer may determine the amount, or the employer is required to make the payment only if certain conditions are met. 

Overtime is all time worked outside or in excess of the ordinary hours of work specified in the employee’s employment agreement.

Part-time work is permanent employment undertaken for less than the standard (40) number of hours in any one working week eg. for three days per week or for 30 hours per week. CAs sometimes define part-time work in a specific way so it is important in all cases to check the relevant definition of part-time work.

Penal rates, which occur in a number of CAs, refer to loadings on ordinary rates of pay due to the particular nature or timing of the ordinary hours (eg. work on Saturdays or Sundays or work on rostered days off).

Any grievance that an employee may have against the employer because of a claim relating to unjustifiable dismissal, unjustifiable action by the employer, discrimination, sexual harassment or duress. For the technical definition of a personal grievance see Section 103 of the Employment Relations Act.

This is defined as being “reasonable and unbiased treatment in accordance with steps that can be seen to have been fair”. Court decisions have shown that the six main requirements of procedural fairness are:

• Prior knowledge – employee must know of the rules and requirements applying to his/her job.
• Advice – employee must be advised of the accusation that he/she faces.
• Representation – employee must given the opportunity to have a representative present.
• Explanation – employee must be given a proper chance to explain.
• Investigation – employer must thoroughly inquire into all relevant facts connected with the matter.
• Due consideration- employee’s explanation must be given full consideration by the employer.

An employee is racially harassed in their employment if their employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly—

• expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and
• is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and
• has, either by its nature or through repetition, a detrimental effect on the employee’s employment, job performance, or job satisfaction.

Redundancy in a general sense is the termination of an employee’s employment where the termination is attributable to the fact that the position filled by that employee is, or will become, superfluous to the needs of the employer.

The Employment Relations Act contains no definition of redundancy. However, employment agreements should be checked to establish if the parties are covered by a document containing a specific definition of redundancy.

The term used to describe one of the remedies available to the Employment Relations Authority where they rule that dismissal by an employer is unjustifiable. Reinstatement involves re-employment of the employee in his/her former position or in a position not less advantageous.  Reinstatement is no longer the primary remedy to be considered by the Authority in PG cases where the employee wishes to regain his/her job.  However, the Authority or the Court may provide for reinstatement if it’s practicable and reasonable to do so.

Relevant daily pay (as defined in the Holidays Act 2003) means the amount of pay the employee would have received had the employee worked on the day concerned and includes productivity or incentive payments and/or overtime payments and/or the cash value of board or lodgings the employee would have received on the day concerned.  Where it is not possible or practicable to determine the employee’s relevant daily pay or the employee’s daily pay varies within the pay period when the leave falls, then the employee’s average daily pay may be used.

An employee is sexually harassed if their employer (or a representative of the employer or a co-worker or a client or customer of the employer) directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains:

• an implied or overt promise of preferential treatment; or
• an implied or overt threat of detrimental treatment; or
• an implied or overt threat about the present or future employment status of the employee; or

by:

• the use of language (whether written or spoken) of a sexual nature; or
• the use of visual material of a sexual nature; or
• physical behaviour of a sexual nature,

directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that, either by its nature or through repetition, has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

The body of law contained in legislation, i.e. Acts of Parliament.

A strike is defined under the Employment Relations Act as the act of any number of employees in discontinuing their employment by reducing or ceasing their normal output or rate of work. For the full technical definition of a “strike” see Section 81 of the Employment Relations Act.

Under the Employment Relations Act participation in a strike (or lockout) will be unlawful if:

• it occurs while the relevant CA is still in force.
• it relates to a personal grievance.
• it relates to a dispute over the interpretation of an employment agreement.
• it relates to Freedom of Association (ie. voluntary unionism).
• it occurs within 40 days of collective bargaining being initiated.
• it is in an essential industry and the notice requirements have not been met.
• it takes place in contravention of an order of the Authority or the Court.

A union or employer which becomes a party to an existing CA during its currency, despite the fact that they were not an original party to the negotiations. 

This term refers to the principle whereby an employee whose employment involves aspects covered by several contract classifications should be classified and paid according to the employment which occupies the substantial part of his/her time in a typical week’s work.

In an employment relations context, suspension means the act of an employer in temporarily “freezing” the employment relationship, ie. the contract of employment remains in existence but the employee is not required to perform any work. Suspension can be either paid suspension in disciplinary situations (also known as “stand-down) or unpaid suspension under Section 87 of the Employment Relations Act (where employees are suspended for taking strike action), or under Section 88 of the Employment Relations Act (where non-striking employees can be suspended without pay because work for them has run out as the result of a strike by other employees).

Temporary work is employment on a fixed-term, non-permanent basis. Depending on the actual employment agreement definition, “temporary” can be distinguished from casual employment (such as on-call or occasional work) because it usually involves a “one-off” engagement, e.g. a student employed during university holidays or an employee employed as a replacement for another employee absent on accident compensation or parental leave. However, some employment agreements give the word “temporary” a special meaning, so in all cases a careful check should be made of the relevant clause.

The act by either the employer (dismissal or redundancy) or employee (resignation) in ending the employment relationship.

“Theft” is defined in the Crimes Act 1961 as the act of

In employment relations language this is the term used to describe misconduct in which an employee has in his/her possession equipment, materials or items belonging to the Company which he/she is not entitled to possess. Unauthorised possession of such property is usually deemed within an employer’s Code of Conduct to be serious misconduct warranting summary dismissal. However each case should be determined on its merits.

Before entering a workplace the union representative must obtain the consent of the employer.  However, note that:

• The employer may not unreasonably withhold consent
• The employer must advise the union of the decision as soon as practicable but no later than the working day after the date on which the request was received
• If the employer denies the request, written reasons must be given to the union no later than one day after the date on which the request is made
• If the employer does not respond within 2 days the union can proceed as though the request has been approved
• Penalties may be imposed by the Authority for breaches of this section

Action in dismissing an employee which cannot be justified on the facts, or in fairness, equity and good conscience; unwarranted, without adequate grounds. In other words, dismissal without “good cause” and without adherence to the principles of procedural fairness.

Note: Unjustifiable dismissal must be distinguished from:

• Wrongful Dismissal: Where the dismissal is in breach of either the express or implied terms of the employment agreement (note that this term is now obsolete because it has been superseded in its entirety by the unjustifiable dismissal provisions of the Employment Relations Act).
• Unlawful Dismissal: Which is where the dismissal is illegal because it breaches an Act of Parliament, the provisions of which have become incorporated terms of the employment agreement.

Liability for acts done by another person, especially in the case of an employer who is liable in law for the acts of his/her employees.

In a general sense, this term has the meaning of unfairly “picking on” someone or singling them out for adverse special attention. In a specific employment relations sense, it means the unfair treatment of an employee because he/she happens to be an employee representative or has acted to promote or protect the interests of employees.

Note: Section 107 of the Employment Relations Act 2000 includes victimisation as a form of discrimination from which employees are specifically protected.

In employment relations language, the use of these words when attached to a statement of offer means that the offer is not to be taken as a basis of a precedent in any other possible area of negotiations, ie. it is a one-off proposal.

In employment relations language, the use of these words when attached to a statement of offer means that the offer is not to be taken as an admission of liability for any previous wrongdoing, eg. an ex gratia payment may be offered in settlement of a dispute “without prejudice”, which indicates a willingness to compromise but no concession of liability.