Waikato Business News November/December 2016

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10 WAIKATO BUSINESS NEWS November/December 2016 An immigration tangle HR AND THE LAW Whanau Tahi Ltd v Kiran Dasari There has been a lot of media coverage recently of immigration issues with Indian students. This is one story where the student lost his job and work permit as a result of the employer’s actions. The facts of this case are not so exciting as my last article, but the legal arguments are really important. Whanau Tahi is a wholly owned subsidiary of Te Whanau o Waipareira Trust and provides computer services to enable social and clinical groups to collaborate on their clients’ care. Mr Dasari applied for and was offered a job as a business analyst for the company and both he and his manager signed the employment agreement. Before taking up the role with Whanau Tahi, Dasai was studying and had a work permit that entitled him to work part-time. When he finished his studies, the work permit was extended to full-time employment with Pizza Hutt. To be entitled to work for Whanau Tahi, he needed to apply to Immigration to change his permit to the new employer. Whanau Tahi insisted that he resign from his existing employment and filled in the forms needed to make the change with Immigration New Zealand. The employment agreement that had been signed by both parties, went to the CEO for a further signature. Immigration New Zealand required the employment agreement to complete the process and the CEO refused to sign it without the required work permit. Dasari was stuck in a loop that he was unable to unlock. Dasari was working at Whanau Tahi but the company decided it could not employ him without a work permit. Instead of sitting down with Immigration and Dasari to sort out the problem, they told Dasari to work from home until it was resolved but didn’t give him work and closed his access to the computer system. A few days later the employer advised Immigration they were withdrawing their support for his work permit, but again, they didn’t tell Dasari. Dasari sought advice and took a personal grievance. Whanau Tahi hedged its bets and ran two arguments. First it argued that the employment agreement was an illegal contract because he didn’t have a valid work permit that entitled him to work for them. Secondly it argued that the contract was frustrated because, due to no fault from either party, they were unable to implement the contract. (In an employment context, frustration of contract most commonly applies when an employee dies or is unable to attend work for a prolonged period, often due to a medical condition or because they are in prison.) The Employment Authority found for Dasari so Whanau Tahi took the matter to the Employment Court. It was a bad move because, unusually, the court agreed with everything the authority had concluded except the compensation awarded to Mr Dasari, which it increased. The court did a detailed analysis of whether the employment was frustrated and whether the employment agreement was an illegal contract. With respect to frustration, it reiterated that there is a very high threshold required to prove that performance of the contract has become impossible, and that this situation has not arisen from any action or inaction of one of the parties. It was within Whanau Tahi’s ability to provide the employment agreement to Immigration New Zealand which had given a clear indication that the work permit would be approved. Furthermore, the employment had commenced without the work permit and therefore was capable of being undertaken, so it did not meet the definition of frustration of contract. With respect to the illegal contract, the employer argued that because there was no work permit the contract was illegal. The court found that > BY ANNE AITKEN Anne Aitken, HR Professional | Email: anne@anneaitken.co.nz although the employment of Dasari without a work permit was illegal, ‘there is nothing in the Immigration Act expressly providing that a breach of its terms renders an employment agreement illegal’. Whanau Tahi was ordered by the court to pay Dasari the two months of wages it had withheld, three months lost wages and $10,000 compensation for hurt and humiliation, up from the two months lost wages and $5000 hurt and humiliation the authority had ordered. New chair for tourism body Hamilton & Waikato Tourism has a new chair. Annabel Cotton has replaced Graeme Osborne as head of the regional tourism organisation marketing Hamilton and the wider Waikato region. Ms Cotton is currently a director of Waikato Regional Airport Ltd and is chair of the airport’s audit and risk committee. She also chairs the investment committee of the Hamilton-based Momentum Waikato Community Foundation. Ms Cotton’s other governance experience includes directorships and audit committee membership at Genesis Energy Limited, the Securities Commission, the External Reporting Board and several NZX-listed companies. She is a Fellow of the Australasian Investor Relations Association, the Institute of Finance Professionals, the Institute of Directors and the New Zealand Institute of Chartered Accountants. Ms Cotton is also a member of Global Women, a collaboration of influential women leaders promoting inclusion and diversity. Ms Cotton has paid tribute to outgoing chair, Graeme Osborne who, after serving five years as a director, is rotating off and has chosen to not offer himself for re-appointment. “Graeme has a very extensive and senior background in tourism and has provided outstanding leadership to the board. He leaves knowing that a comprehensive regional tourism opportunities plan is now in place for the region. Much of that was driven by his vision The employer could easily have dealt with this situation safely. Firstly, they should have fulfilled their part of the process to complete the Immigration New Zealand requirements. Secondly they should have communicated with Dasari much more openly, as required under the good faith provisions. Finally, the employment agreement included a provision that it was dependent on the employee having a work permit, if he had failed to secure his work permit he could have been dismissed with due process. New Hamilton & Waikato Tourism chairwoman Annabel Cotton. and enthusiasm for the tourism sector and for our region.” Ms Cotton took up her role on November 1. LEADERS IN BOAT TRAILER DESIGN & PERFORMANCE Need a new boat trailer? Our trailers are • NZ made • Custom built • Functional Built for • Ease of launch/retrieve • Safer towing Call us direct or available from marine dealers throughout New Zealand 43 OLD RUFFELL ROAD, TE RAPA PARK, HAMILTON – P 64 7 849 3158 – www.voyagertrailers.co.nz 70417
WAIKATO BUSINESS NEWS November/December 2016 11 Waikato businesses missing out Out of date websites are costing Waikato businesses dearly. Waikato businesses could be missing out on half of the e-commerce they are due because their websites haven’t been updated for internet browsers on smartphones and tablets. If their core business is e-commerce this can be a substantial amount of business. If you have a website that is not responsive to mobile devices you don’t need a new one, only to update it for the latest technology which is here to stay. Hamilton based graphic design and web development company E9 surveyed 150 local websites and found half were not responsive on the web browsers of mobile devices. This means websites designed for large desktop computer screens appear exactly the same on a smartphones or tablet, only in a shrunken form. Such websites are designed to be navigated with a mouse, rather than fingers, making it difficult to move from page to page. “It’s far from a great user experience for the mobile device user,” said E9 general manager Mehrdad Behroozi. “In fact it’s tedious seeing the website so tiny on your mobile device. It’s like trying to read your name on a grain of rice. “Typically such websites are anything from difficult to impossible to use on a small screen and the user usually gives up after a few seconds, since they know there’s a better browsing experience elsewhere. If your non-mobile responsive website drives a potential customer to your competitor, and they end up spending money with them, this can be a very expensive mistake.” It’s no coincidence that some of New Zealand’s busiest websites, google.co.nz and trademe.co.nz, are optimised for mobile web browsers. They appear one way on a desktop or laptop computer, and another way on a smartphone or tablet. “We were really surprised to see how many Waikato WEB OF INTRIGUE: Company-X director David Hallett (left) and E9 general manager Mehrdad Behroozi. websites are still not responsive to mobile devices,” Merhdad, who is known as Merv, said. “You would not print a brochure so small that you need a magnifying glass to read it, yet a website is a more important part of your marketing collateral because it’s always on and accessible from anywhere in the world. “If you have a website that is not responsive to mobile devices you don’t need a new one, only to update it for the latest technology which is here to stay.” Internet usage from mobile devices exceeded desktop worldwide for the first time in October, StatCounter Global Stats found. Mobile device usage claimed 51.3 per cent of internet usage in October, compared with 48.7 per cent from desktop computers. Hamilton based software specialist Company-X, a sister firm to E9, wouldn’t dream of building a web based application that wasn’t responsive to tablets and smartphones as well as the more traditional computer monitor. “Everything we do on the web can be viewed on small screens as well as larger screens,” said director David Hallett. “The idea is that you get an equally great experience, regardless of what device you choose to view the application on.” Company-X’s clients include everyone from government departments to one person businesses with projects of large to small scale. A good proportion of Company-X’s work is on smartphone and tablet platforms in the Apple App Store for iOS devices and the Google Play store for Android, David said. “These mobile apps, by their very nature, are designed to be responsive and their popularity only goes to prove just how popular mobile computing has become in the past few years.” We really like solving problems with software. Tell us yours. INNOVATION Software can solve your biggest problems and deliver on your brightest ideas. INTEGRATION Software can improve, add functionality to, or fix your existing software investment. INSOURCING Our software experts can help you get the job or project done. We’re ready, are you? Contact us today: Level 2, Wintec House, Cnr Anglesea & Nisbet Street, Hamilton, New Zealand 3204 Phone: 0800 552 551 Email: info@company-x.co.nz Visit us online: www.company-x.co.nz
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Waikato Business News November/December 2016

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