Q. When I started my job I agreed to work alternate weekends. It was written in my contract to work 20 hours a week and no specific days were mentioned.
I was told I would have to work every weekend till the new person started and we could share them. But when that person came along she had a contract that said she didn't have to work weekends - leaving me to work every weekend since.
Is this allowed to happen? Can I get the weekends I should have been entitled to in the first place when I began there? I have been to the manager several times and have been told to get over it.
A. You state that only the hours of work are in your employment agreement. Your employer has an obligation under the Employment Relations Act 2000 (ERA) to ensure that your employment agreement contains the arrangements relating to the times you are to perform your duties. From what you say, this requirement appears to have been breached by your employer.
Where the employer is in breach of their obligations under the ERA, the Employment Relations Authority often interprets the employment agreement in the employee's favour. This should mean that you were employed to work 20 hours a week and that you are only required to work on alternate weekends.
The fact that your employer has entered into an employment agreement with the new employee that does not require her to work weekends is your employer's problem, not yours.
You have raised the issue with your employer and they have not properly addressed your concerns. You now have the option of raising a disadvantage grievance with your employer. You can do this by writing to your employer and stating your concerns and your understanding of your working times.
If your employer continues to ignore your grievance you should seek assistance from your union (if you are a member) or an employment law specialist.
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Q. Two years ago a colleague suffered depression and couldn't function at work and took two months off, using his sick and annual leave entitlements. When he returned, his work performance was affected and he didn't pass a training assessment.
Management gave him two options - to find other employment within the company (which has not been successful), or to be medically retired (which he doesn't wish).
Ten years ago he had a non-work-related accident and now has some weakness in his left arm and leg. Under the collective agreement, if an employee suffers harm as a result of a non-work-related accident and is unable to perform their usual job, the employee may request a transfer to another job during the period of recovery. If the company agrees to the employee's request the employee will be paid the appropriate hourly rate for the job to which the employee is transferred.
Under the CA, the company can warn him of his poor performance and go down the track towards dismissal.
What are his rights and options and what are the employer's obligations?
A. Because your friend's employment is governed by a collective employment agreement (the collective) his first port of call should be to the union that is a party to the collective. The union should be able to advise your friend of his rights under the collective.
From what you say, your friend appears to have failed a training assessment for medical reasons. So his situation does not fall under the poor performance regime. His situation raises illness and disability issues. This entitles him to a fair hearing on his disability issues and to be able to discuss with his employer the likelihood of him retraining so that he can carry out the duties of his position.
Generally, illness and disability issues in the work place should be dealt with by an employer with a great deal of care because these situations involve a combination of sometimes conflicting legal obligations (under the ERA, the Humans Rights Act and the Health and Safety in Employment Act 1992).
Your employer should invite the union and your friend to a meeting to discuss your friend's prospects of recovery or redeployment. However, if, after going through a fair process, your employer finds that he cannot perform the duties of his position the employer can dismiss him for incapacity. They will have to give him the notice required under the collective.
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