Waikato Business News July/August 2019

48 WAIKATO BUSINESS NEWS July/August 2019
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Keeping an employee’s position
open during parental leave
From July 1 July last year, primary carer leave
(colloquially referred to as “maternity leave”)
increased from 18 weeks to 22 weeks paid
leave, and the payment rate increased from
$538.55 to $564.38 gross per week.
The primary reason behind
these changes was to
allow a longer bonding
period between an infant and its
primary carer (not restricted to,
but usually the birth mother) and
to allow breastfeeding mothers
to breastfeed for the first six
months of an infant’s life, as recommended
by the World Health
Organisation.
This article sets out only the
most basic rights pursuant to the
Parental Leave and Employment
Protection Act 1987 (PLEPA). It
is a complex, unwieldy piece of
legislation that would be impossible
to fully summarise in 800
words, and reading the full act
is highly recommended for anyone
suffering from insomnia.
For a primary carer to be
entitled to paid primary carer
leave, they must have worked
continuously, on average for
more than 10 hours per week,
for the period of six months
immediately before the birth or
agreed date of the leave commencing.
A person eligible for primary
carer leave may also take
extended leave. Those who
have worked for six months
before the leave are entitled to
26 weeks’ leave (which includes
the 22 weeks of paid leave with
the remainder unpaid), and those
who have worked for 12 months
or more before commencing
parental leave are entitled to 52
weeks (including the 22 weeks’
paid leave, with the remainder
being unpaid).
Employers may need
to throw the net wide,
including considering
contractors and
temping agencies,
given most employees
would be unwilling to
leave a permanent job
for a temporary role.
Section 41 of the PLEPA
contains a presumption that an
employer will keep an employee’s
position open for the periods
set out above, and the
options for an employer to override
this presumption are very
limited. In a nutshell, the options
are either that, due to the key
nature of the employee’s position,
it is not reasonably practicable
to replace the employee on
a temporary basis (Option 1), or
where there is a genuine redundancy
situation (Option 2).
In the case of Option 1, an
employer would need to be able
to satisfy two arms of the test:
first that the employee is in fact
a key employee, which, among
other things, factors in the size
of the employer and the training
period and skills required for
the position, and secondly, that
it is ‘not reasonably practicable’
to temporarily replace the key
employee. Satisfying this test is
considerably trickier than it may
sound.
It would be a rare case and
difficult to argue that a key
employee cannot be replaced
on a temporary basis, given all
employees are entitled to four
weeks’ annual leave a year. An
employer would need to be able
to demonstrate that while the
employee could be temporarily
replaced for four weeks, that
would not be possible for the
duration of the parental leave
period.
EMPLOYMENT LAW
> BY ERIN BURKE
Employment lawyer and director at Practica Legal
Email: erin@practicalegal.co.nz phone: 027 459 3375
Further, in Auckland Provincial
District Local Authorities'
Officers IUOW v Onehunga
Borough Council [1989] 1
NZILR 476 (LC), Judge Castle
held that:
…the use of the word ‘practicable’
in our view has to be
looked at as something far different
from the words ‘possible’
or ‘available’ or ‘practical’, all of
which necessarily implies a subjective
test. It could be argued
perhaps that whatever the Legislature
meant by the words ‘not
reasonably practicable’ could be
construed as ‘virtually impossible’.
That to us appears to be the
broad position under the Act….
So an employer would need
to argue that temporarily replacing
an employee on parental
leave would be ‘virtually impossible’,
and there is also case law
that states even a difficulty or
impossibility in finding a temporary
replacement is not relevant
to this test, unless it arises
out of the nature of the position
(as opposed to the employer
simply not being able to find
someone, for example, due to
unavailability or remote geographical
location).
Option 2 (redundancy situation)
needs to be approached
very cautiously, given the significant
increase in judicial scrutiny
that now applies to contested
redundancies, as described in
last month’s column. While a
genuine redundancy situation
may arise before or during a
period of parental leave, redundancies
which are suspected of
being carried out with the intention
of defeating an employee’s
rights pursuant to the PLEPA are
likely to end with reinstatement
of the employee and an order
for the employer to pay significant
remedies to the employee
to boot.
The PLEPA requires
employees to apply for primary
carer leave at least three
months before its commencement.
Employers are urged to
use this time well and to take
all necessary steps to replace
the employee temporarily, if that
is what is needed. Employers
may need to throw the net wide,
including considering contractors
and temping agencies,
given most employees would be
unwilling to leave a permanent
job for a temporary role.
Waikato Automotive Group appoints new
general manager
Waikato Automotive Group (WAG) is proud to announce the
promotion of Amber McBeth as general manager.
Amber was employed
by Lightning Automotive
Te Rapa in 2015
to answer phones. It quickly
became apparent that she was
capable of much more and her
role within the company grew.
Within 18 months, Amber
was running the Te Rapa
branch of Lightning Automotive
and by 2017 she was leading
two branches.
Fast forward to 2019 and
Amber is now in charge of
Hamilton WOF Station, Power
Steering Services and all
three Lightning Automotive
branches with a total of 20
staff.
Waikato Auto Group owner
Keith Marshall says Amber
has great vision and leadership
skills which allow her to get
the best from those around her.
Amber says the people she
works with are a highlight of
the job, along with the lovely
customers she has met over the
years.
“Also my promotion has
been a big highlight for me.
I’ve been given room to grow
and learn new skills with the
support of my whole team so
that’s been amazing too.
“My team is amazing. We
are like family. We are all close
and we all look out for each
other. It’s a really fun environment
to work in because
we all make jokes at each other’s
expense and have a good
laugh. Ninety-nine percent of
the time you will walk in and
someone is singing at the top
of their lungs too, which is
always hilarious.”
Amber’s rapid rise is quite
an achievement considering
she had zero car knowledge
and no staff management experience
when she started. Especially
when you consider that
she is only 26 years old and a
full-time mother to two young
children who she idolises.
“The biggest challenge in
the beginning was the fact I had
very little knowledge of cars in
general. I struggled massively
in the first six months just
getting my head around the
different repairs and services
we offer. With that being said,
it’s also made the job so much
more fun because I’m constantly
learning.”
Due to flexible hours,
Amber is able to do the school
run and spend afternoons with
her children, then finish her
working day in the evening.
When she first started, her
daughter was 2 and her son was
only 9 months old which meant
she was still getting up in the
night to them and then working
45 hours a week as well.
“There were definitely
times I thought of giving up
because I was exhausted but
then I would remind myself
that I have my two little ones
watching me and I need to be a
role model they can look up to.
“Now my kids are older, so
we juggle work, school, kindy
and sports! We are busy, but
we love it.”
Keith says Amber’s ability
to manage and resolve conflict
both internally and externally
sets her apart.
“We are already seeing
gains from plans implemented
by Amber to give staff more
responsibilities and ownership
of their individual stores.
“Amber sets the standard
for the business culture and is
a role model to the people she
works with.”
0800 WAG GROUP
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