New Zealand: Progress and technological advancement – what it means in an employment sense

Last Updated: 19 June 2013

As published in NZLawyer magazine

When I first started working as a lawyer in the Wellington office of one of the big firms, my secretary had worked at that firm, as a legal secretary, for longer than I had been alive. Things had of course changed over those 30 years and I imagine that her role when I worked with her, which involved, among other things, creating PowerPoint presentations, typing up digital dictation on a computer, organising seminars and formatting documents, was significantly different to her role when she started in the seventies. I used to charmingly joke that when she started she rode to work on the back of a dinosaur and she was taking dictation from authors using a chisel and a stone tablet. This example illustrates the fact that technology and the development of it, has an impact on the way we do business. It also has an impact on employment law and the rights and obligations of the parties to an employment relationship.

Changes to a role over time

The global financial crisis has led many businesses to look at their structure, and in many cases, to propose redundancies as a way of reducing headcount and cutting costs. Examples include firms with a sales manager and a marketing manager proposing that they can disestablish those roles and proceed with one new role; sales and marketing Manager. The reality is, you can't guarantee that your role, in its current form, will exist for the foreseeable future and employees, now more than ever, need to be prepared to adapt to changes.

The threshold for redundancy is generally accepted to be a 20 to 25 per cent change to the role. By that I mean, if an employer is proposing to change an employee's role by 20 to 25 per cent, that cannot be done unilaterally and requires consultation with the employee about a proposal to make such change. By comparison, roles naturally develop and evolve over time. In the example of my secretary above, her role 30 years later may have been more like 80 per cent different to the role when she started, but because the changes were gradual over time, a redundancy situation was never triggered.

There is some debate about the extent to which an employer may limit themselves by providing the employee with a job description. Section 65 of the Employment Relations Act 2000 requires that an individual employment agreement must include a description of the .work to be performed. However, where a fulsome job description is provided, employers need to be mindful of reserving their right to require the employee to perform other duties as they may arise over time. To this end, we recommend that a job description is expressed as being an indicative job description and that it is clearly non-exhaustive. A robust employment agreement will include express clauses which state that the job description is indicative and non-exhaustive and that the employer reserves the right to require the employee to perform other duties that may be required, within the employee's skill set and within the scope of the role.


With advances in technology comes an increased ability to be contacted. While that can be a good thing in terms of giving greater flexibility to reply to emails, work remotely, and be contactable while travelling, it is important that the employer's expectations are clear. For example, do you expect employees with iPhones and Blackberries to check and respond to emails in the evenings and on weekends? What about on annual leave? Do employees have Bluetooth in their vehicles so they are complying with the legislation regarding the use of mobile phones in vehicles?

An article I read recently included this sentence which I liked, but can't claim as my own: "Switched on companies will increasingly realise the value of getting employees to switch off". It provided an example that German company Volkswagen turns off mobile email, for some of its employees, 30 minutes after a shift ends, meaning those employees cannot use mobile email after that time. That makes it clear the employee is not expected to respond to work emails at that time. Global company Nike apparently has a dedicated space for staff to use to take a nap or to meditate, to encourage rejuvenation away from technology. This presumably is at head office, rather than in the retail stores!

What these examples illustrate is the need for an employer in this day and age, with technological advances as they are, to turn their mind to what is and isn't acceptable in regard to technology and contactability. We all know that the Holidays Act 2003 provides an entitlement to annual holidays and that one of the stated purposes is to provide opportunities for rest and recreation. That is inconsistent with an expectation that employees are contactable by clients and responding to emails while on leave.

That doesn't of course address the problem of the diligent employee; he or she who says he or she is happy to be contactable and whose idea of a good time is sending important emails about TLis (thorny legal issues) from a sun lounger somewhere in the Pacific. The reality is, the onus is on the employer to ensure that leave is taken: making sure employees take leave regularly and actually genuinely take leave (as opposed to just working overseas) is important. Making sure employees are regularly taking leave is important in terms of ensuring your employees remain fresh and productive and managing annual leave liability in a financial sense, but also from a risk perspective - issues of theft and fraud and other irregularities are often found when an employee takes leave. Beware the employee who vigorously resists leave. No one employee should be indispensible (and if they are, that will be another area of risk for the organisation).

Social media

When my secretary started working in the legal services industry, Facebook, Twitter, and Linkedin certainly weren't around. Employers didn't have to consider issues like:

  • whether employees would attend staff functions and post photos on social networking sites or blogs;
  • whether it was appropriate for employees to be 'friends' with clients on Facebook;
  • whether employees' connections with clients on Linkedin were connections and information the employee could take with them on termination of employment;
  • whether an employee's tweets or comments on Twitter are the employee's personal views and whether they may reflect badly on the organisation.

Those are all issues that astute employers ought to be turning their minds to and, potentially, having policies to cover and address.

When it comes to technology it is perhaps best to adopt the approach – you can't stop progress. Employers need to ensure that their organisation adapts to new technology so that it functions as efficiently as possible from an operational perspective, but also to avoid risks from an employment perspective.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.