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.

Contactability

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 Mondaq.com.

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”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions