Manawatu Employment Law Services
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There is much emphasis these days on the behaviour of employers, specifically, it seems, on what they cannot do, e.g. fire employees on the spot even if he/she is actually caught in an act of serious misconduct;  discipline them without following a rigorous process which includes giving them notice that they face such a process, allowing them to have a support person, and then giving them time to respond;  cannot vary previously agreed conditions of employment without the employee's consent.   Much of this is only fair and reasonable.  However, because employers are now held to such a high standard of behaviour, the point is often overlooked that employees, too, have obligations under law such as acting only in the best interests of the employer, behaving in good faith within the relationship, and complying with all lawful and reasonable instructions.  In my work as an employment relations consultant, I frequently see employees with no notion of any of those obligations and, whilst the employer must go to great pains to deal with the results of that, the employee can wreak havoc on a work place as the employer dutifully follows due process.  I would even go so far as to say that some employees feel that they can call the shots in their place of employment as they have the idea that the employer is severely limited in what it can do.  One such recent case was that of Bhikoo v Stephen Marr Hair Design Newmarket Ltd.   The relationship between Mr Bhikoo and his employers broke down.  Mr Irvine, one of his employers, initiated an investigation into Mr Bhikoo's behaviour at the work place.  Mr Bhikoo's lawyers objected to Mr Irvine being a decision maker once the investigation was completed, and it was agreed that another director of the company, Ms Vincent, would be the person responsible for making a decision about Mr Bhikoo based on the results of the investigation.  He objected to this as well and refused to take part in the investigation.  He was subsequently dismissed and filed a personal grievance of unjustified dismissal.  The case went all the way to the Employment Court which found that he had not been unfairly dismissed and that, in fact, Mr Bhikoo had breached an employee's duty of good faith which required him, under sec. 4(1A)b of the Employment Relations Act 2000, to be responsive and communicative. This would mean attending disciplinary meetings and engaging in the process that his employers were following.  The judgement, in fact, is quite damning of Mr Bhikoo's attitude to his employers, saying that his behaviour was sufficient to seriously undermine the trust and confidence that an employer needs to have in its employee.  That last point of behaviour is one that is often levelled against employers, but could, in my view, be used far more often than it is against employees as well.

I am indebted to Buddle for knowledge of this case.

 Another case which highlights an obligation of employees is that of Sunair Aviation Ltd v Walters.  Mr Walters worked for Sunair for seven years at which point Sunair was required to go to tender for fire services at Tauranga Airport.   If Sunair was not successful in its bid, its employees faced possible redundancy.  Mr Walters decided that he, too, would put in a bid for the work despite having a clause in his employment contract with Sunair that he would not, during the course of his employment with it, not become involved in any way with a business that would be in competition.  Mr Walters was ultimately successful in his bid and Sunair had to make its employees redundant.  It then came to Sunair's notice who had won the tender and it sued Mr Walters for breach of contract and breach of an employee's implied duty of fidelity, which is a common law duty that all employees must act in their employer's best interests.  In this particular instance, that translates to Mr Walters attempting, by his tender bid, to take work away from his employer.  Sunair won its case on both its contractual and common law basis. 

   I conclude by saying that, in stating the above, I am not making a case that employees are more badly behaved than employers; I wish only to make an often overlooked point, which is that they, also, have obligations under the law.

Posted: Mon 23 Feb 2015


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