The ERA held that the redundancy was genuine, that consultation would not have resulted in the employee retaining their job, and that there were no lost wages payable as a notice period had already been paid. 

However, the failure to consult seriously impacted on the employee’s health and justified an award of $10,000 for hurt and humiliation.  To make matters worse the ERA also held that the employer had to pay a further $10,000 compensation for leaking the decision to dismiss.

If you are unsure how to handle a redundancy process call me for a free initial chat on 0800 733 400 or download our free guide to the redundancy process

As a general rule, when a marriage, civil union or de facto relationship of three years or more comes to an end, each party is entitled to half of all “relationship property”. One of the categories of property, which is not considered “relationship property” and is instead considered the separate property of one or other of the parties to the relationship are taonga and heirlooms.

There have been many cases before our Courts dealing with the definition of “taonga” and “heirlooms”. Whether a party is successful in keeping a taonga or heirloom separate following the end of a relationship will depend on the facts of the particular case.

It is important therefore, that people who have items of particular significance, value or sentiment, come to an agreement with their partners as to what each party understands their taonga or heirlooms to be. They should also agree as to what should happen to those heirlooms or taonga if the relationship comes to an end.

Sometimes entering into an agreement of this nature is not easy. However, the earlier this issue is addressed in relationships, the easier it is likely to be.

An agreement of this type will not be binding unless it is in writing and each party to the agreement has had independent legal advice as to the consequences of singing it. The Agreement must also be signed by each party and their independent lawyers. This type of Agreement is called a “Contracting Out Agreement”.

A Contracting Out Agreement can be entered into at the beginning of or during a relationship.

Should you have assets such as heirlooms or taonga that you wish to protect, we suggest that you seek legal advice regarding the best protection for you.

Restraint of trade clauses are regarded by the Courts as contrary to public policy, and will only be enforced to the least extent possible to protect the employer’s business.

In a recent situation two senior employees decided to set up a competing business and copied client lists and contact details before they announced their resignations. They then started contacting clients as soon as they had left, despite provisions in their agreements preventing them doing that.

The employer, luckily, heard what they were up to and was able to show that they had copied the confidential information to their personal computers. Action was taken in the Court and the Court issued orders preventing the employees from using the data they had taken, and also ordering damages for the lost business.

It is very important to ensure that your employment agreement covers all the necessary protections for you because a Court will never increase what is in the agreement, but will often reduce it if it considers the restrictions unreasonable.

An issue that often crops up in disputes is that an employee has not been given adequate reward for entering into the restrictions…so you need to get this aspect right. If a Court can see clearly that the employee got substantial extra benefits and willingly entered into the restrictions it will tend to be a factor in your favour, so you need to have very clear documentation.

Ensure that the restrictions are reasonable as to geographical area, duration and extent of the prohibitions.

Geographical area…For example restricting someone from doing something “in the whole of New Zealand” may be unnecessary to genuinely protect your business…

Duration…Trying to stop a former employee doing some specific things for five years after they leave you may also be quite unnecessary if you could properly take steps to protect your business in six months…

Extent of restrictions…Trying to stop someone working in your industry may be quite inappropriate, even for a short time, if what is really necessary is that they not try to take away customers they have dealt with, or poach key staff employed while they were working for you etc…

A failure to get these restraint of trade provisions right can mean a failure of your business if your employee walks out the door and takes your customers with them. 

This is an area filled with danger and not one in which any significant element of self-help is recommended to employers…especially as each employee’s situation is different.

If you need help drafting or enforcing these provisions please call me on 0800 733 400 for an initial chat.

If you suspect that your employee has, or will, act in breach of their obligations then you need to act very quickly to prevent or minimise the harm that might be done. Get early advice as to the steps you should take.

When the purchaser’s solicitor searched the title they found that the rules provided to the purchaser did not match the ones on the title.  It transpired that the Body Corporate had neglected the final step of registering the rules, and had to hurriedly sign the relevant documentation to register the rules to avoid having to negotiate a delay in settlement.

The Unit Titles Regulations (2011) detailed the default Body Corporate operational rules that will apply from October this year unless a Body Corporate decides to implement new rules earlier than that.  Many Bodies Corporate are choosing to add to the basic rules. 

The steps required are:

1. Draft new rules; 
2. Pass an ordinary resolution to adopt those rules as your new operational rules;
3. Sign a Notice of Change of Rules;
4. Register the new rules (on the Supplementary Record Sheet on the title to the complex) with Land Information New Zealand.

You need to make sure you follow the correct steps to ensure your rules are valid.  Your lawyer will be able to assist with the above process.

The employee was questioned by the employer and denied the theft, but was sacked that day. 

Unfortunately for the employer they had not told the employee the identity of the complainant, or provided a copy of the letter, and so the employee could not give information that would throw doubt on the validity of the allegation. 

It transpired that the complainant was the spouse of another employee with whom the sacked employee had had a falling out.

The ERA awarded almost $7,000 in lost wages and $7,500 compensation.

Employers need to ensure that the employee accused of wrong-doing is provided with the information the employer has, so they can properly prepare to answer the allegations.  This includes the name of the complainant and a copy of the letter.  As can be seen from this case, the name of the complainant can be highly relevant to the truth of any allegations.

If you need help working your way through the disciplinary process please download our Guide to the Disciplinary Process at www.raineycollins.co.nz or call me on 0800 733 400.

Unfortunately, this is the wrong process, and results in trouble when the employee alleges that they were taken by surprise and ambushed without being given the necessary information and warnings.

In a recent example an employee alleged he had been assaulted at work by a co-worker.  The employer interviewed some of the witnesses, and the employee alleged to have done the assault, to see if she should begin a disciplinary process. 

The employee was told he could have a support person but was not told what the allegations were, was not given any time to prepare to respond and was not told the potential consequences.  These are all matters that the employee must be given before they are interviewed, even if you have not yet decided to start a formal disciplinary investigation.

The proper process to follow should involve interviewing the complainant and other witness (but not the alleged perpetrator) to see if it appears that a disciplinary process should be started.

If it is clear that a disciplinary process should begin then the employee should be told in writing of the allegations, the potential consequences and their right to a support person.  They should be given sufficient time to prepare, and copies of the information collected so far by the employer.

If the employer is unsure after interviewing the witnesses and wants to give the employee a chance for input before a disciplinary allegation is made then this can be done, but a very careful process must be followed.

The employee needs to be told that:

1. The employer is gathering information to decide if a disciplinary allegation will be made;
2. The employee is not obliged to respond at this point;
3. Anything they say can be taken into account now and later if an allegation is brought;
4. They will get another opportunity later to respond if an allegation is brought;
5. Not responding now will not be held against them; and
6. They should get advice from a representative/support person before deciding whether to respond at this stage.

If you need help getting this process correct or have any other issues you need assistance with please give me a call on 0800 733 400.

1.  Promises

If you have performed a service or have done work for the deceased, and they promised to reward you in their Will, but didn’t, then you can make a claim against the estate.  An example of this situation is if you have provided substantial unpaid care for a person, on the basis that they promised to give you a share in their property after their death. 

The work provided and the promise to reward the worker in the Will must be related to each other, so it would not be enough if you were doing the work out of the goodness of your heart and then decided that you deserved payment.  The amount awarded by the Court will be confined to reasonable compensation for the work actually done for the deceased.

 2.  Challenge the Will

When a person makes a Will they must be of sound mind, and must not have been unduly influenced or fooled into making any provisions in the Will.  If you think that the deceased was not of sound mind, then you may be able to challenge the Will.  Medical evidence would be needed to establish their condition.  Once that has happened the estate would be divided according to the last valid Will.  If there was no previous Will, then there is a situation that is called an intestacy.  In an intestacy, property is divided between surviving spouses or de facto partners, children, parents and siblings according to set rules. 

3.  Family protection 

The law imposes a moral duty on people to adequately provide for the proper maintenance and support of certain people entitled to provision from their estate.  This includes the deceased’s spouse, de facto partner, children, dependent stepchildren, grandchildren and parents. 

The duty to provide for the above people is not limited to those who are in financial need.  Many well off claimants have received substantial payments from the estate for non-financial reasons, such as to acknowledge that a person belongs in the family.  The amount of payment varies dramatically between cases as it depends on all of the circumstances of the particular case.

4.  Relationship property 

A spouse or de facto partner of a deceased person can claim half of all relationship property, under the law that deals with the division of relationship property.  An exception to this is if the couple had signed a property sharing agreement during their relationship.

Here are the ten most common ways people leave their wills open to challenge.

1. Where the deceased is your de facto partner you may bring a claim under the Property (Relationships) Act 1976.
2. Where the deceased is a close family member you may be entitled to make a claim under the Family Protection Act 1955 if adequate provision has not been made for your maintenance and support.
3. Where the deceased has not kept a promise to reward you for services you may have a claim for payment as a “Testamentary Promises” claim.
4. Where the deceased is a close family member or defacto who has not left a will at all (or the will is invalid) you may have entitlement under the Administration Act.
5. Where the process of making the will involved some error, the will may be invalid and the estate may be dealt with under different rules.
6. Where the deceased had an interest in Maori land it may be possible to challenge how that land was dealt with under a will if it is not dealt with in accordance with statutory guidelines.
7. Where a person has made a will when they were mentally incapable of understanding their decisions that will may be challenged and replaced with an earlier will.
8. Where a person has made a will in circumstances of undue influence, distress or fraud, that will may be challenged.
9. Where the deceased created a reasonable expectation that you or another person would gain an interest in asset to which you have contributed you may have a claim that a constructive trust in your favour should be recognised.
10. Where the deceased has left a valid will but the terms contain a mistake or are open to interpretation, then those terms of the will may be challenged.

It is important to note that time limits will apply for people to do something in these situations.

The elderly woman died, leaving a Will, which made no mention of the jewellery going to her friend.  Although the friend received a gift of money under the Will, this did not compare to the sentimental value that attached to the jewellery.  Not to mention the fact that she knew her elderly friend’s wish was for her to receive the jewellery.

Unfortunately, because the jewellery was not specifically referred to in the Will, it fell into that part of the deceased’s estate that was to be divided among the deceased’s family. 

In situations like this, the Will is the only binding document.  Even something handwritten and signed by the deceased before they died may not be sufficient, as there are strict witnessing requirements surrounding the signing of Wills. 

There are laws that mean the friend can make a claim against the Estate as the deceased promised to give her something for work carried out in her lifetime, but this can be difficult to prove, may result in conflict with those entitled under the Will to the deceased’s property, and sometimes even results in court proceedings.

If you have a specific wish regarding any of your property after your death, make sure you put it in your Will!  It may avert disputes between family and friends that could occur over your estate.

If you do not have a Will, the results are even worse!  In that situation, who gets your property is decided by rules set out in the Administration Act.  Not having a valid Will or having a Will that does not accurately reflect your intentions can produce unintended, and emotionally painful, results for your family and loved ones.

If you don’t have a Will, now is the time to remedy that.  If you have a Will, it is a good idea to review it to make sure that it still reflects your intentions.

There are four main restrictions on doing what you want in your Will. 

1.  There is a moral duty on the Will-maker to adequately provide for the proper maintenance and support of people entitled to provision from their estate.  These are:

• The wife or husband;
• The children;
• Dependent step-children;
• Grandchildren; and
• Parents (in special circumstances).

The duty to provide is not limited to those who need financial assistance.  Many well-off claimants have received substantial payments from the estate for non-financial reasons, such as an acknowledgement of their place of belonging in the family.  The amount of payment will vary in all the circumstances of the particular case.

2.  The law allows a person who has performed some service or work for the deceased in return for a promise of reward in the Will to claim from the estate.  The work provided and the promise to reward the worker in the will must be related to each other.  The amount awarded will be confined to reasonable compensation for the work actually done for the deceased.

3.  The partner of a deceased person can now claim an equal share of his or her estate instead of receiving whatever they were left in the Will. The law about equal sharing at the end of a relationship did not previously extend to when people died. If the survivor of the relationship is not bound by a property-sharing agreement and is not adequately provided for in the Will then a claim for equal sharing can be made.

4.  The Will-maker must be of sound mind when making the Will and they must not have been unduly influenced or fooled into making certain provisions in the Will.

If you want to leave your property in a way that differs from normal it is important to tell your lawyer why and to provide good evidence to back up those reasons.  This will enable the Court to take those reasons into account.