Restaurant Association gift vouchers (a paper voucher) and the Restaurant Gift Card (a plastic eftpos-sized card) can be used in Restaurant Association member establishments throughout New Zealand, with participating businesses promoted on www.dinefind.co.nz.
Check www.dinefind.co.nz/giftcard to see if your business is listed as taking the gift cards. If it is but you’re not sure how to redeem them, give us a call on 0800 737 827. If your business is not yet set up to accept the gift cards, give us a call and we’ll organise this for you.
Typically hospitality businesses will have a well documented procedure for cashing up. However, from time to time we are contacted by an employer who wants to know how they can deal with an employee that they consider has been careless in following the procedures, resulting in regular discrepancies in the cash up. Can the employer recover the lost amount equivalent to the ‘lost’ cash?
The Wages Protection Act 1983 sets out the way wages must be paid, and prevents unlawful deductions from wages. In certain circumstances an employer can make a deduction from pay. For example, if:
- the deduction is specifically required by law, for example, PAYE tax, student loan repayment, child support
- the deduction is for a lawful purpose, is reasonable and the employee has agreed to or asked for the deduction in writing. ‘Agreed in writing’ includes a general deductions clause in the employment agreement, but an employer must consult with the employee before they make a specific deduction under a general deductions clause. The employee can vary or withdraw their written consent to a deduction by giving notice in writing at any time. The employer must then vary or stop the deductions within two weeks of receiving the notice or as soon as practicable
- the deduction is to recover an overpayment in limited circumstances
- a court directs that a deduction be made.
If an employer takes money from an employee’s pay without written consent (the employer can’t pressure the employee to agree), the employee could take an action in the Employment Relations Authority to get the money back.
Therefore, in our opinion it would be difficult to enforce a ‘repayment’ for a banking shortfall. The matter should however be addressed with the employee to establish if the “cashing up” errors were the result of the procedures not being understood by the employee? It is also a good idea to review whether the training was adequate? If the discrepancies continued after this, it may be suitable to instigate a formal disciplinary process if it was felt that the failure to follow company process was deliberate.
To discuss further please contact the Restaurant Association Helpline on 0800 737 827 or email firstname.lastname@example.org.
The Restaurant Association Helpline sometimes receives calls regarding an employee having secondary employment. Is it possible for an employer to insist that no other employment be undertaken?
Generally there is nothing to prevent an employee having secondary (or for that matter self) employment outside his or her hours of work, so long as this:
- Does not breach any express term in the employment agreement
- Does not create a conflict of interest or have a detrimental effect on the employers business, for example direct competition with the employer.
This is a result of the implied term of fidelity and good faith in the employment relationship. Any conduct by an employee which is likely to damage the employer’s business could in some circumstances constitute a breach of that duty. Therefore, if the employment agreement does not contain an express prohibition regarding secondary employment and the implied duty of fidelity and good faith is not breached, the employer cannot prevent the employee from undertaking secondary employment.
The Restaurant Association’s employment agreement template clause 28 states:
28. Conflict of Interest
- The Employer operates in a highly competitive industry in which products, ideas, recipes, information and relationships are critical. You acknowledge that your position with the Employer has given you access to confidential information, intellectual property, products, ideas, recipes, information and relationships that are vital to the continued success of the Employer’s business.
- For these reasons you will not, without the Employer’s prior written consent, engage in any other employment or otherwise participate, directly or indirectly, in any other activities or interests that may:
a) Conflict in any way with the Employer and your responsibilities to it; or
b) Adversely affect the Employer; or
c) Affect your ability to perform the duties under this Agreement.
This means that employees are required to seek your consent before taking up secondary employment or doing any other activity or interest while working for you that may conflict with or adversely affect the employer or affect the employee’s ability to do the employee’s job. However, this clause does not prohibit or restrict the employee from performing work for another person if there is no conflict or adverse affect on the employer. Regardless, you should not unreasonably withhold your consent. The only real reason why an employee should be stopped from taking up outside employment would be where that other work is in direct competition with the employer, or where the requirements of the outside employment meant that they were unable to fulfil their obligations to you – for example, working the night service with one employer might mean that an employee was in no condition to work the breakfast service for you.
To discuss further please contact the Restaurant Association Helpline on 0800 737 827 or email email@example.com.
No, but it is possible that you may be able to dismiss an employee for theft (or unauthorised handling of company property), after following a proper disciplinary process.
If you view camera footage of your employee taking company property without authorisation, you should invite your employee to a formal meeting (the Restaurant Association has a letter template to invite someone for a formal meeting which you can use).
- Your employee should have at least 2 days’ notice of the meeting and should be advised that they are invited to bring a support person or representative along to the meeting.
- You should either email the camera footage to the employee before the meeting, or you should advise them in the letter that if they wish to see the camera footage before the meeting, then you are happy to arrange for this. You should not “spring” the camera footage on the employee at the meeting in an attempt to catch them off guard.
- If you think that there could be a reasonable explanation for the employee taking the property, you may want to make preliminary enquiries by having an “informal chat” with the employee. If you are not satisfied with their initial explanation, you should proceed with the formal disciplinary process.
Theft constitutes serious misconduct and, as noted above, it is possible that, after following a proper disciplinary process, that you may be able to dismiss the employee without notice if you find that the allegations are true.
- During the formal meeting, the employee must be given a reasonable opportunity to respond to the allegations and you must adjourn the meeting to consider any explanations/feedback put forward by the employee. It is also likely that you may also need to conduct some further investigations or interviews based on the employee’s feedback.
- Once you have reported back to the employee your findings from any further investigations and they have nothing further to add, you need to consider the feedback and come to a preliminary decision.
- The preliminary decisions is also communicated to the employee and a separate meeting should be held to allow the employee an opportunity to provide feedback on the preliminary decision.
- Once you have considered the employee’s feedback on the preliminary decision, only then can you make your final decision as to the outcome of this process.
The Restaurant Association can help you with the disciplinary process and recommend that you call the helpline before undertaking the formal disciplinary process or making the decision to dismiss an employee.
Another point to note is that if, during the disciplinary process, your employee resigns, or asks if you would like them to resign, the answer should always be no. If you answer “yes”, you expose yourself to a constructive dismissal claim from the employee. If the employee attempts to resign at any stage during the disciplinary process, you should not accept the employee’s resignation immediately, instead suggest a 24 hours cooling off period for them to consider their decision and come back to you. If they still wish to resign, then they should advise you in writing of this.
To discuss further please contact the Restaurant Association Helpline on 0800 737 827 or email firstname.lastname@example.org.
The Holidays Act provides that all employees on the anniversary of their employment are entitled to four weeks paid annual leave. The Act also provides for an additional 11 paid statutory holidays.
For example if you have an employee who is on annual leave over the Christmas / New Year period, they are entitled to additionally be paid for December 25, 26 and January 01, 02 if the days on which they fall are normal days of work. These days will be paid as statutory holidays and not taken from the employee’s annual leave entitlement.
The Restaurant Association’s employment agreement template includes a business interruption clause.
This clause attempts to add clarity to situations where business operations are interrupted by unforeseen events beyond your control, such as a snowstorm, fire or a major earthquake. In these circumstances, communication, consultation and flexibility is paramount.
Where a business is closed due to weather conditions (even for a couple of days) it is a business interruption, due to circumstances beyond the control of the Employer. The clause in the agreement states that an employer will consult with an employee about any decision regarding payment for the days the business is closed, so business owners need to speak with their employees before making a decision on whether they will be paid or not.
This conversation may include discussions about whether there was alternative work available elsewhere for the employee, and if not, whether it was appropriate that the employee be paid, take leave without pay, or take annual leave etc. If the decision was made not to pay the employee, it is open for the employee to challenge it, however, if the above process is followed you will be unlikely to have any problems.
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The following days are public holidays in 2017:
New Year’s Day Sunday 1 January OR Tuesday 3 January
Day after New Year’s Day Monday 2 January
Waitangi Day Monday 6 February
Good Friday Friday 14 April
Easter Monday Monday 17 April
ANZAC Day Tuesday 25 April
Queen’s Birthday Monday 5 June
Labour Day Monday 23 October
Christmas Day Monday 25 December
Boxing Day Tuesday 26 December
and the Anniversary Day of the Province in which an employee works
1. Payment for working on a public holiday
Anyone who works on a public holiday is entitled to be paid at a rate of time and a half.
If the public holiday is a day that they would normally work (for instance the public holiday is on a Monday and the employee usually works on a Monday), and they do work it, then they are also entitled to one days full paid leave (an alternative holiday) to take some time in the future.
If the public holiday falls on a day that is not a normal day of work for the employee, and they do work it, then they are entitled to be paid at time and a half but they do not earn an alternative holiday.
2. Payment if not working on a public holiday
The terms of the Restaurant Association individual employment agreement template sets out that employees agree to work on public holidays if requested by the employer.
However, if an employee would normally be working on the day that the public holiday falls, but it has been agreed that they have the day off, they are entitled to be paid the amount of pay that they would have received had they worked on that day (their relevant daily pay).
If the employee does not work on a public holiday because it is their normal rostered day off, there is no obligation to pay the employee for that day.
If you are not using the Restaurant Association employment agreement template you should check your own operation’s employment agreement to see what it says with regards to employee’s working on public holidays.
3. Closedown periods:
An employer can close down their business each year for a period of time (commonly Christmas/New Year) and require some or all employees to take their annual leave. If an employee does not have annual leave available, you may direct them to take the leave as unpaid leave, or provide other arrangements like allowing the employee to take leave in advance of their annual leave entitlement. You need to give your staff 14 days notice of any closedown period and you can only have 1 customary closedown in any 12 month period.
It should be noted that a public holiday that occurs during an employee’s annual holidays must be treated as a public holiday and not as part of the employee’s annual holidays. The employee is entitled to be paid for a public holiday if the holiday would have otherwise been a working day for the employee.
Refer to sections 29-35 of the Holidays Act 2003 for the legislation that covers closedown periods.
4. Special provisions relating to public holidays that fall on the weekend
There is special provision in the Holidays Act 2003 relating to Monday-ising public holidays when they fall on the weekend. This applies to Christmas / New Year public holidays as well as Waitangi Day and ANZAC Day. What this means is that these public holidays will be observed on Saturday or Sunday for workers who usually work on those days, but will be transferred and observed on Monday or Tuesday for other workers for whom the weekend days are not a regular day of work.
For reference: Refer to section 45 of the Holidays Act 2003:
If any of these public holidays:
(a) falls on a Saturday and the day would otherwise be a working day for the employee, the public holiday must be treated as falling on that day:
(b) falls on a Saturday and the day would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Monday:
(c) falls on a Sunday and the day would otherwise be a working day for the employee, the public holiday must be treated as falling on that day:
(d) falls on a Sunday and the day would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Tuesday.
An employee will still only be entitled to observe the public holiday on one day. So if for instance Christmas Day falls on a Saturday and an employee usually works on both Saturday and Monday (and works both days on the week of the public holiday), they will observe the public holiday on Saturday. Monday will simply be paid as a normal day of work (not at public holiday rates).
Remember that even if you chose to close over this period and your employees are taking their annual holidays they are still entitled to be paid for any public holidays that fall over this period if the public holidays would have been a normal working day for them. These days should not be taken from their annual leave entitlement.
5. Employees on call on public holidays have different entitlements depending on the nature of the call-out arrangement:
If the employee is called out, he or she is entitled to at least time and a half for the time worked, plus a full day’s paid alternative holiday (if it would otherwise have been a working day).
If the employee is required to restrict activities on the day to the extent that they have not enjoyed a full holiday, for example, if the employee is required to stay at home all day but is not called out, then the employee is entitled to a full day’s paid alternative holiday (if it would otherwise have been a working day).
If the employee is on call, but is not required to restrict activities, for example, if the employee can choose not to accept the call-out then entitlement to an alternative paid holiday would arise only if the employee accepts a call-out and the day would otherwise have been a working day for the employee.
If the day would otherwise be a working day for the employee, and they do not get called into work, they are entitled to relevant daily pay for the day. Any agreement for being on call would depend on the employment agreement.
Rights to an alternative holiday do not apply where the person called out has an employment relationship with the employer only on public holidays.
If you still have queries regarding public holidays please call the Restaurant Association Helpline on 0800 737 827 or email us on email@example.com.
Firstly, employers can hire new employees on a trial period of 90 days or less and this has become a standard inclusion in employment agreements for new employees.
In the event that the employee is dismissed during the trial period the employee is unable to take a personal grievance for unjustified dismissal (they may still take a personal grievance on other grounds).
Some of the key factors to consider, to ensure your 90 day trial is valid are:
- You cannot put someone on a 90 day trial if they have previously worked for you (even as a casual).
- The fact that there will be a 90 day trial period must be discussed with a prospective employee and outlined in the offer of employment.
- A trial period clause must also be in the written employment agreement (by using the Restaurant Association agreement template you are covered).
- The employment agreement must be signed before the employee commences work.
- You must not treat employees on a trial period any differently to any of your other employees (note that the employee can’t bring a grievance for unjustified dismissal, but can still bring other types of grievances against the employer, for example unjustified disadvantage (the most common), discrimination, sexual harassment, etc).
- If you do decide to action a dismissal through the 90 day trial period provision, the dismissal must be with notice (and not payment in lieu of notice, unless it was requested and mutually agreed upon between the employer and employee).
If you like a copy of the Restaurant Associations employment relations package, which includes employment agreement templates and guidelines, order a free copy (for members) from us today.
Designed to deliver new business to Association members, annual sales for this programme, along with the Restaurant Gift Card programme, is in excess of $1.2 million dollars. So make sure you are not missing out!
Simply email us on firstname.lastname@example.org or call – (09) 638 8403 if you would like to join the gift vocuher programe. For more info check out the gift voucher and restaurant gift card survival guide.
Talk to us!
Offering expert business guidance and the tools and resources to help your business are some of the many ways the Restaurant Association supports our members. We offer free employment advice to all of our members with a team of specialised experts ready to help.
- 24/7 Helpline (0800 737 827)
- Employment relations advice
- Lease agreements and contracts
- Liquor licensing (Sale & Supply of Alcohol Act)
- Letter templates and guidelines
- Confidential support and advice
Also try looking over the sample letters and guidelines under the resources link for more information. If you are not a Member but would like to become a member Join Now online or contact us on (09) 638 8403.
To find out which establishments accept the paper Restaurant Association gift vouchers please check out www.dinefind.co.nz. You can find which businesses accept the gift vouchers by looking for this green icon (below) on the establishment’s listing. You can also find out which businesses accept the Restaurant Gift Card on www.dinefind.co.nz.
If you pay music in your business you need the permission of the people who own the music you play to use their work in this way.
Under the New Zealand Copyright Act 1994, music writers and the owners of the recordings of that music have a number of rights which allow them to control how and when their music is used and to negotiate payment for this use.
These rights include:
- The right to perform music in public, (e.g. by playing a CD, radio, TV or by a live performance)
- The right to communicate music to the public, (e.g. a radio or television broadcast, via a music on hold system or to make available for download)
- The right to reproduce music, (e.g. on a CD or on any recording device such as an iPod)
Because it is difficult or impossible to obtain permission from every copyright owner prior to performing, communicating or reproducing their music, OneMusic has been established to provide a link between music users and creators and producers of the music. OneMusic is a joint licensing initiative between APRA (who represent music writers and publishers) and Recorded Music NZ (who represent record companies and recording artists). OneMusic’s role is to administer the rights of their members (i.e. a worldwide repertoire of music writers, publishers and record companies) and enable you to play music in public by taking one simple licence.
If you perform or communicate music to the public, or reproduce music, you need to obtain a OneMusic licence to comply with the New Zealand Copyright Act 1994.
For further information on OneMusic click here.
We have a wide range of payment options available for paying your membership. You can either pay by
- Credit Card (we accept, Visa, MasterCard, Diners, Amex)
- Direct Credit (in to our bank account) and
- Direct Debit
The full amount of the membership can be paid by any payment method, or if you wish to pay by monthly installments you can pay by direct debit.
Is the employer obligated to let the employee substitute the time for sick leave?
If an employee is on annual leave and they, or a spouse or dependent, becomes sick or is injured you can agree, if asked, to substitute sick days for the annual leave.
Please note, however, if an employee has been allowed annual leave and before taking it he or she becomes sick or injured, or a spouse or dependent becomes sick or injured you must allow him or her to take any period of sickness or injury that the employee would otherwise take as annual holiday as sick leave.
Minimum wage rates are reviewed every year. From April 2017 the current rates are:
From 1 April, 2017, the adult minimum wage rates (before tax) that apply for employees aged 16 or over are:
- $15.75 an hour; which is:
- $126.00 for an 8-hour day or
- $630.00 for a 40-hour week or
- $1,260.00 for a 80-hour fortnight.
The minimum rates that apply to starting-out workers, and employees on the training minimum wage (before tax), are:
- $12.60 an hour; which is:
- $100.80 for an 8-hour day or
- $504.00 for a 40-hour week or
- $1,008.00 for a 80-hour fortnight.
There are three minimum wage rates:
- The adult minimum wage applies to all employees aged 16 and over who are not starting-out workers or trainees, and all employees who are involved in supervising or training other employees.
- The starting-out wage applies to starting-out workers. Starting-out workers are:
- 16- and 17-year-old employees who have not yet completed six months of continuous employment with their current employer.
- 18- and 19-year-old employees who have been paid a specified social security benefit for six months or more, and who have not yet completed six months continuous employment with any employer since they started being paid a benefit. Once they have completed six months continuous employment with a single employer, they will no longer be a starting-out worker, and must be paid at least the adult minimum wage rate.
- 16- to 19-year-old employees who are required by their employment agreement to undertake industry training for at least 40 credits a year in order to become qualified.
- The training minimum wage applies to employees aged 20 years or over who are doing recognised industry training involving at least 60 credits a year as part of their employment agreement, in order to become qualified.
Simply contact our Helpline on 0800 737 827 and we can answer any of your employment questions and send you through copies of the latest employment agreement templates. Members can also download the suite of employment agreement templates through the Shop.