Managing Staff

Policy

Regulation

Tools / Template

Knowledge

References

Policy

Managing People – Managing Staff

Policy Reference

This section presents a summary of information on the operational management of staff.

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Regulation Reference

The Ministry of Education’s Licensing Criteria for Early Childhood Education and Care Centres 2008 section on Governance, management and administration requires that services demonstrate they have a number of professional practices in place. Included in these is GMA7 – suitable human resource management practices are implemented.

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Tools / Templates

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Knowledge

Your Leadership Style

There is always a debate going on about leadership styles. There is no one-size-fits-all leadership style. Successful leaders are those who can adapt their behaviour to meet the demands of their own unique situation. This is called situational or contingency leadership.

General human tendency in decision-making differs time-to-time and depends on the circumstances. Applying this general behaviour into leadership gives excellent results in achieving success with people management.

The following model illustrates how you can adapt your leadership style to suit the circumstances of an individual staff member in a specific situation:

Leadership_Style

In this model the competence and motivation of the staff member are the key influences of the manager’s response. That response is a mix of task behaviour and relationship behaviour, depending on the staff member.

Task behaviour is the extent to which a manager engages in one-way communication by explaining what each staff member is to do, as well as when, where, and how tasks are to be accomplished.

Relationship behaviour is the extent to which a manager engages in two-way communication by providing socio-emotional support, “psychological strokes”, and facilitating behaviours.

Readiness is the ability and willingness of a person to take responsibility for directing his or her own behaviour in relation to a specific task to be performed.

According to this model, as the level of readiness of the staff member continues to increase in terms of accomplishing a specific task, the manager should begin to reduce task behaviour and increase relationship behaviour. This should be the case until the staff member reaches a moderate level of readiness.

As the staff member begins to move to an above-average level of readiness, it becomes appropriate for the manager to decrease not only task behaviour but relationship behaviour as well. Now the staff member is not only ready in terms of the performance of the task but also is confident and committed. People at this level of readiness see a reduction of close supervision and an increase in delegation by the manager as a positive indication of trust and confidence.

In simple terms, the lower the competence or motivation of a staff member, the more appropriate it is for the Manager to be directive and specific in their instruction of tasks to perform. As competence and confidence increases in the staff member, the Manager can relax from being so directive and use delegation increasingly, enabling the staff member to increasingly use their judgement and skill to get the job done.

Motivation

The loss of a key staff member can have a dramatic effect on your centre. It is difficult for a small business to retain staff because it is not always possible to offer someone a career path. Simply increasing someone’s salary does not always mean you will retain the services of that person. Simple things, such as giving employees more control over their own work, can have an enormous impact.

Another technique is to involve staff in the planning of the business. This will increase their interest and commitment.

Employees like using a variety of skills and like and like to know that their work is important and meaningful. The more you can design their jobs to allow this to happen the greater your chances of retaining them.

The Manager’s Primary Role

The primary role of the Centre Manager is to create and ensure the environment in which staff work enables them to succeed at their job. By making sure the environment is OK, the Manager can expect the childcare service to operate successfully, effectively and efficiently.

Success = good systems supported by great people; or in this case a good environment supported by great people!

Creating the Right Environment

This section explores a number of factors that will contribute to a stable working environment for your staff.

Centre staff rules

Centre managers often consult the ECC about setting appropriate rules for their staff. We’ve compiled a useful set of rules for centre staff that can be “cut and pasted” into other documents and adapted for your own use.

Staff rosters and ratios

The current adult:child ratios are set out in Schedule 2 of the Education (Early Childhood Education) Regulations 2008.

New Zealand qualified and registered primary teachers in teacher-led ECE services can be counted as a registered teacher for funding purposes. This means that registered primary teachers can be included in the staff hour count.

The Education (Early Childhood Services) Regulations 2008 require that there must be a “Person Responsible” in teacher-led ECE services at all times; and that they must hold a recognised early childhood teaching qualification and be registered and certificated by the Education Council.

Staff rosters and ratios

Under employment legislation an employee is entitled to two 10 minute uninterrupted paid rest breaks and one 30 minute unpaid meal break in each 8 hours of work. Thus, a 10 minute rest break for the first period of 4 hours; a 30 minute meal break for 4 – 6 hours worked; and another 10 minute break if working up to 8 hours.

But, if staff are happy to have their morning tea on the floor, for example, then its best to ask them to say so formally to help to avoid any problems later.From the Ministry’s perspective, as long as the rest break doesn’t exceed 15 minutes and the children are supervised at all times, then there’s no problem.

Pay and Benefits

The ECC undertakes a Wages and Salary Survey of ECC members each year and publishes the results on our website for members. Go here to see these results including the teacher attestation rates and definitions.

Centres are required to pay their teaching staff at least a minimum prescribed wage rate based on their qualifications and experience.You have to attest to this as part of your funding claims.The Minimum prescribed teacher’s pay rate for centres is found in the ECE Funding Handbook.Go to: http://www.education.govt.nz/early-childhood/running-an-ece-service/employing-ece-staff/attestation/

Centres are free to pay what they want and what the market expects for other staff, taking note of the Minimum Wage Act.

Minimum Wage Rates (as of 1 April 2019)

There is no statutory minimum wage for employees who are under 16 years old.

A small number of people hold an exemption from the minimum wage.

The current minimum wage rates (before tax) are as at 1 April 2019 and apply to employees aged 16 years or over:

Type of minimum wage Per hour 8 hour day 40 hour week 80 hour fortnight
Adult $17.70 $141.60 $708.00 $1,416.00





Employees have to be paid at least the minimum hourly wage rate for every hour worked.

Employees have to be paid at least the minimum hourly wage rate for any extra time worked over eight hours a day or 40 hours a week.

Read more at: https://www.employment.govt.nz/hours-and-wages/pay/minimum-wage/minimum-wage-rates/

Reviewing Remuneration

Remuneration, or pay rates, under individual employment agreements should be set on the basis of:

  • Qualifications to do the job

For teaching staff, this is straight forward.The scales listed in the Ministry of Education’s ECE Funding Handbook will outline this for you. These rates are taken from the ECE Collective Employment Agreement (was called the Consenting Parties Agreement).

While the Ministry, for funding purposes, approves your employment of primary-qualified teachers, you are not obliged to pay primary-qualified teachers on the primary teachers’ wage rates as they are not employed in a primary environment.The Ministry of Education outlines that you should pay a primary-qualified teacher working in your centre at the same rate as their primary-qualification equates to an ECE qualification; ie: if they are undergraduate qualified, then at the undergraduate ECE qualification level, etc.

Qualifications for non-teaching staff may be varied and need to be considered in the context of the job.For example, an administrator with a degree in English literature cannot apply this qualification to an argument about wage rates for the administrator’s job.Certificates in Microsoft programmes or bookkeeping, on the other hand, should be taken into account

  • Experience to do the job

This is the classic argument about new graduates versus experienced, qualified teachers, but applies to any role.People with hands-on experience AND qualifications have an expectation to have that experience recognised in their wage rate.

  • Parity with others employed in the same or substantially similar role (parity)

Do not get caught offering a higher rate to one employee when another, doing the same job, is being paid lower – without a really good justification.People talk, and as much as you would like to keep things like this quiet in your centre, this will get out.

  • Individual performance over time

Using the staff member’s Appraisal as your guide, map an employee’s performance over time.If there is a clear and consistent picture of improvement above the basic expectation of the role, then some recognition may be appropriate.

  • Inflation

If you are considering increasing wage rates at your centre to reflect changes in inflation, you must apply the change to all staff.We recommend you use the Labour Cost Index (LCI) for this purpose as this index examines changes in wage rates, compared to the typical inflation measure, the Consumer Price Index (or CPI), which measures a package of consumer goods, appliance costs, etc.Information on the LCI can be found at: http://m.stats.govt.nz/browse_for_stats/income-and-work/employment_and_unemployment/labour-market-statistics-information-releases.aspx

A Model for Setting and Adjusting Remuneration Levels

  • Someone who starts a new job at your centre and can do all that is required, to the standard expected – gets the standard wage or salary level for that position
  • Someone who starts a new job at your centre but requires time to “grow into the role” and build their on-the-job skills – starts at 80% of the standard wage or salary level for that position
  • Someone who has been in the role for at least a year at your centre and consistently achieves more than is required for the job at a consistently high standard – advances up to 120% of the standard wage or salary level for that position.

One of the key premises of this model is that doing the job described in the position description, to the standard required, is the minimum expectation. To be paid more requires a consistently-higher effort and at least the same level of quality. Starting off in a new job frequently requires investment from the employer, in time and other, to bring the person up to a fully-functioning capacity.

Union Rights

The right of an employee to join a union (and the restriction of others not to discriminate against or for them) is provided for under international law, Human Rights Act and the Employment Relations Act.

Employees have an absolute right:

  • To choose to join a union or to choose to not join a union
  • To join a particular union in preference to joining some other union
  • To resign from a union.

It is illegal for anyone to use undue influence to try to make another person join or not join a union or to resign from a union.

Undue influence may include:

  • An employer threatening to make life difficult for, or dismiss, someone unless he or she resigns from a union
  • Union members engaging in actions to intimidate non-members, or vice versa.

Employers may not decline to employ someone, offer inferior terms and conditions or withhold training or promotion opportunities to employees because they are union members.

Employers may not decline to employ someone, offer inferior terms and conditions or withhold training or promotion opportunities to employees because they are not union members.

Changes were made to the Employment Relations Act, with effect from 1 April 2011, stating a representative of union must obtain consent to enter workplace.

Before entering a workplace under section 21 of the Employment Relations Act, a representative of a union must request and obtain the consent of the employer or a representative of the employer.

If a representative of a union makes a request:

  • the employer or representative of the employer must not unreasonably withhold consent; and
  • the employer or representative of the employer must advise the representative of the union of the employer's or representative of the employer's decision as soon as is reasonably practicable but no later than the working day after the date on which the request was received; and
  • the consent of the employer or representative of the employer (as the case may be) must be treated as having been obtained if the employer or representative of the employer does not respond to the request within 2 working days after the date on which the request was received.

If an employer or a representative of an employer withholds consent the employer or representative of the employer must, as soon as is reasonably practicable but no later than the working day after the date of the decision, give reasons in writing for that decision to the representative of the union who made the request.

Rights of employees engaged in union activities

Employees who have been engaged in union activities have some special protections under the Employment Relations Act 2000.

It is illegal for an employer to offer inferior conditions, to sack, or to force employees out of their jobs because those employees have been active in union-related activities. Such activities include an employee being a union officer or delegate or collective bargaining representative, or an employee claiming employment rights for that employee or for other employees.

Union Fees

The Employment Relations Amendment Act 2004 inserts into all agreements a requirement for the employer to deduct union fees where the employee is a union member and consents.

Payments must be made to the union in accordance with arrangements made with the union.

Leave provisions

All employees are entitled to at least four weeks’ paid holidays a year.

Employees get their annual holiday entitlements on their first and subsequent anniversaries after starting work.

Some agreements may provide for one or more “additional” weeks of holidays on top of the statutory entitlement.

Annual holidays can be taken at any time agreed between the employer and the employee. Employees must be given the opportunity to take at least two of the four weeks’ holidays continuously, if they wish to do so.

As of 1 April 2011, employees are able to ask their employer to pay out in cash up to one week of their minimum entitlement to annual holidays per year.

Holiday pay

Some points of advice regarding holiday pay.

Holiday pay must be accrued for staff on extended sick leave

While most managers might intuitively think that staff who are off work on extended sick or ACC leave do not continue to accumulate holiday leave during that time (since there is nothing to base the 8% on), the Holidays Act says otherwise. Employers are required to continue to accumulate holiday leave during the absence, by including in gross earnings since last entitlement, “...an amount equal to the amount of ordinary pay that would have been paid had he not been absent, reduced by the amount of sick pay paid in respect of that week or part of the week.” [Section 3].

When a staff member has to take time off work due to sickness or accident, the Holidays Act is interpreted to provide that the employee is entitled to have their holiday pay continue to accrue while they are still employed (until their employment is terminated). For example, an employee who stops work/takes sick leave for 6 months (at Christmas), is paid out all their holiday pay and then leaves or has their agreement terminated in the following July, is entitled to another six months’ worth of holiday pay based on 8% of the gross amount they ‘would have been paid’.

While this provides wide security of income for an employee, it does also provide a big surprise for the employer, who in the meantime has also likely employed, and is accumulating holiday pay for, the replacement staff member.

The lesson for early childhood centre employers: there is a very real cost of allowing ‘loose arrangements’ (albeit generous) for staff who have effectively terminated (unlikely to return), but not actually formally terminated their agreement. Moreover there is an incentive for employees to extend this process.

Holiday pay calculations – a word of warning

Are you paying staff annual leave entitlements at the rate of 8% of wages for the 12 months immediately preceding the leave anniversary date? If so you run a real risk of under-paying your staff. This is particularly the case if you have

  • staff who do not work all year round (i.e. maybe you are a sessional centre that closes during the school holidays)
  • staff who have received a wage increase during the year
  • staff who have increased their hours of work during the year

In these cases, chances are, the 8% calculation will be significantly less than the correct holiday leave entitlement calculation, which is the greater of:

“Average weekly earnings” determined by calculating gross earnings over the 12 months prior to the end of last payroll period before the annual holiday is taken, and dividing that figure by 52 x the number of weeks of leave

or

Ordinary pay when the holiday is taken x the number of weeks of leave.

If you need help to check that you are calculating leave entitlements correctly contact the ECC on 0800 742 742 option 2, or option 4 for the ECC’s free Employment Advice Help Line.

Cashing Up Annual Holidays

From 1 April 2011, legislation allows employees to ask for their employer to pay out in cash up to one week of their minimum entitlement to annual holidays a year.

Employees cannot cash up annual holiday entitlements that arose before 1 April 2011. For example, an employee who becomes entitled to annual holidays in March 2011 could not make a request to cash up until they next become entitled to annual holidays in March 2012.

Requests to cash up can only be at the employee’s request and the request must be made in writing.

Employers may have a workplace policy that they will not consider any requests to cash up annual holidays. This can apply to the whole or only some parts of the business. The policy can only be on whether the employer will consider any requests. It cannot be about the amount of annual holidays an employee can cash up or the number of requests an employee may make. An employer should consult with employees on the development of such a policy, and new employees of the policy when they make an offer of employment, as part of their good faith obligations.

If an employer does not have a workplace policy on cashing up that applies to the employee, they must consider any request to cash up annual holidays in good faith.

Employees may request to cash up less than a week at a time.

More than one request may be made until a maximum of one week of the employee’s annual holidays is paid out in each entitlement year (a period of 12 months’ continuous employment from the anniversary of the employee’s starting date or from 1 April 2011.)

Any request must be considered (unless the employer has a policy that does not allow cashing up) within a reasonable time and may be declined.

The employee must be advised of the decision in writing and the employer is not required to provide a reason for their decision.

If an employer agrees to pay out a portion of the employee's annual holidays, the payment should be made as soon as practicable, which will usually be the next pay day. The value of the payment must be at least the same as if the employee had taken the holidays.

An employer cannot pressure an employee into cashing up holidays.

Parental Leave

Leave may be available to:

  • female employees having a baby, and to their spouses or partners (includes a married, civil union or de facto relationship with a different or same-sex partner)
  • employees, and their spouses or partners (includes a married, civil union or de facto relationship with a different or same-sex partner), who begin permanently caring for a child under six years who is not their natural child (this includes permanent care such as adoption and home for life, but not foster care).

Employees can take parental leave again for a different child as long as they have been back at work for six months before the expected arrival of their next child and they still meet the parental leave criteria.

To take parental leave the staff member does not have to be a citizen or a permanent resident of New Zealand, but they must be employed under New Zealand employment law.

People on fixed-term employment agreements get the same entitlements to parental leave and parental leave payments as permanent employees as long as they meet the criteria.

To take parental leave the staff member must meet either the six month or 12 month criteria. The amount of leave a staff member can take depends on whether they meet the six or 12 month criteria. If they have worked for the same centre for more than 12 months, but not for an average of 10 hours per week, they may still be able to take parental leave under the six month criteria.

Six month criteria

The staff member must have worked for the same employer for an average of at least 10 hours a week for the six months before their baby’s due date (or the date they become responsible for the care of a child under six years on a permanent basis).

Twelve month criteria

The staff member must have worked for the same centre for an average of at least 10 hours a week for the 12 months before their baby’s due date (or the date they become responsible for the care of a child under six years on a permanent basis).

Types of Parental Leave

  • Primary Carer Leave
  • Special Leave
  • Partner’s Leave
  • Extended Leave
  • Negotiated Carer Leave.

For information on the detail of these types of leave, go to: https://www.employment.govt.nz/leave-and-holidays/parental-leave/types-of-parental-leave/

Process

  • If a staff member or their spouse or partner are having a baby and want to take parental leave or negotiated carer leave they must write to their employer at least three months before the baby’s expected due date.
  • If the staff member is going to start being the permanent primary carer of a child under 6 years, they have to let you know as soon as possible when it is likely to happen. They must write to you at least 14 days before they want to take parental leave.
  • The letter must say:
    • what type of leave they want
    • the date that they want the leave to start, and
    • how long the period of leave will be.
  • If they are sharing any part of their leave with their spouse or partner, the letter must also say:
    • the dates on which both they and their spouse or partner plan to start and finish each period of leave
    • their spouse or partner’s name and, if they are an employee, the name and address of their employer
    • that they and their spouse or partner are both eligible for the leave they are applying for; and
    • that the total amount of leave they and their spouse or partner are taking will not be more than 52 weeks (not counting any partner’s leave taken).

What to include if the staff member or their spouse/partner are giving birth

  • They must attach a copy of a certificate from a doctor or midwife naming who is pregnant and the baby’s due date. If it is their spouse or partner who is pregnant, they need to include a written letter from the spouse or partner saying that the staff member is their spouse or partner and they will be going to assume the care for the child the spouse or partner is going to have.

What to include if the staff member is taking permanent primary responsibility for the care, development and upbringing of a child under 6 years

  • They will need to attach to their statement:
    • a certified copy of a court order placing the child in the staff member’s day-to-day care or custody, or
    • a copy of a letter from the chief executive of the Ministry or organisation who has custody of the child confirming that the employee is or will be the primary carer in respect of the child, or
    • a copy of the application for a parenting order or adoption order (if one has been made) and a statutory declaration, or
  • if none of the above can be provided, a statutory declaration.

Obligations of consultation, good faith and procedural fairness continue to apply to employees absent on parental leave in the event of potential restructuring.

Domestic Violence Leave

Leave

Staff can take up to ten days of paid domestic violence leave per year if they are affected by domestic violence, in addition to annual leave and sick leave, once they have completed six month’s continuous service.  Additional leave (paid or unpaid), if required, may be available at the Centre Manager’s discretion.

Employers may ask for supporting information from the police, government departments, a health professional or a family violence support service. This will be at the discretion of the Centre Manager.

For employees supporting someone affected by family violence

We recommend Unpaid leave to be used for employees who are supporting someone affected by family violence, eg to go with them to court, to hospital or to mind children, at the discretion of the Centre Manager

For employees who have perpetrated family violence

We recommend Unpaid leave will be available for perpetrators who are committed to rehabilitation, at the discretion of the Centre Manager.

Short-term safety measures

A workplace safety plan should be developed between the staff member who is concerned about their safety at work due to domestic violence and the Centre Manager.

The staff member is entitled to request short-term flexible working arrangements, including:

  • flexibility in work hours and days of work
  • flexibility in duties at work
  • flexibility in place of work.

Short-term flexible working requests will be considered urgently (within 10 working days or sooner).

The plan might also cover areas like:

  • stopping the perpetrator from contacting the victim at work
  • re-routing pay slips and changing bank accounts
  • designating a person to monitor attendance and follow up in the event of unplanned absences, including an appropriate emergency contact or potential code word to use in the event of danger.

Policy on disciplinary procedure

In the event that staff rules have been contravened and disciplinary action must follow it’s essential to have a firm plan of disciplinary procedure to follow. Click here for a disciplinary procedure guide which you can consult and adapt as part of your centre’s policy.

These should be disclosed to staff before any incident and preferably at the time of employment. It is useful to have it on a notice board or in a staff handbook.

Managing Performance

Remember, issues to do with behaviour and/or performance will not go away unless challenged and a solution found

Managing performance is divided into three stages:

1. Appraisal

  • This model is based around the development of individual staff in your team and assessing their performance on a regular basis
  • Usually a 12-month meeting supported by regular catch-ups during the year
  • As part of a performance management process, this could be advanced to a 6-monthly process, particularly where the issue driving the performance issue is a persistent issue, such as ongoing failure to meet the requirements of the job to a satisfactory standard
  • Use the Performance Discussion Planner tool to facilitate a performance meeting as part of the appraisal process. Confirm the outcome using the Performance Management Discussion Meeting Confirmation Letter
  • Should this not work, then move into a formal Performance Management Process approach

2.Performance Management Process

  • This model is based around how a Centre Manager manages a situation where a staff member has transgressed in some way. Transgression can be:
    • Failure to meet the requirements of the employment agreement
      • Significant single event, such as abusive outburst in front of parents
      • Persistent failure, such as in performance of the role or application of the Centre’s values, etc
    • Misconduct; a breach as described in the Centre’s House Rules
    • Serious misconduct; a significant breach as described in the Centre’s House Rules.

Before commencing a Performance Management process, consider the following factors:

  • Seriousness of the problem – is the incident a severe breach or an infraction?
  • Time span – have there been other disciplinary problems in the past?
  • Frequency and Nature – is it an emerging problem or a continuing problem with little or no improvement?
  • Degree of communication – what efforts have been made to educate the employee about the standards expected and the consequences of violations?
  • Employee’s work history – how long has the employee been employed and what is the quality of the service they have provided?
  • Extenuating factors – are there any extenuating circumstances relating to the problem?
  • Precedence – how have similar infractions within the Centre or sector (to the best of your knowledge) in the past been dealt with?
  • Implications – what impact will the decision have on other employees? Parents? Children?
  • Evidence – is there sufficient evidence to justify the decision to proceed with an investigation?

When approaching formal performance management situations, ALWAYS:

  • Document what is said, by both parties
  • Give written notice (wherever possible) of the meeting to take place with the staff member
    • Confirm the date, time and place in the notice
    • Confirm who will be present
    • Confirm the purpose of the meeting, that it is a disciplinary meeting and that an outcome of the meeting may affect the employee’s status at your centre
    • Advise the staff member they may bring a support person of their choice, but to let you know
  • You should have a support person there too, to take notes and be of support to you
  • At the meeting:
    • State the situation
    • Give an example of the problem
    • Explain why it is a problem
    • Ask for the staff member’s response/explanation
    • Ask questions
    • Invite any questions or remaining statements from the staff member and their support person
    • Adjourn the meeting for a minimum of 15 minutes, or if evidence has to be investigated or established, agree to re-schedule as soon as possible
    • Re-convene the meeting
    • Re-state the situation
    • Summarise the Staff Member’s response/explanation
    • Make a clear statement about whether this is acceptable or not
    • Make a clear statement of the outcome of the disciplinary process

Options for Outcomes of Disciplinary Meetings

Once an outcome of a Disciplinary Meeting has been established, the Centre Manager must decide what action is appropriate to take. The selection of the option is going to be guided somewhat by the severity of the issue and how clearly the staff member can be held responsible.

Options include (in rough severity order):

  • Agreed performance improvement plan with review points
  • Limitation on duties (if appropriate)
  • Reprimand
  • Suspension on Pay
  • Dismissal

Warning letters

A written warning should refer to the meeting held with the employee and must also state that it is a written warning.

All warning letters must contain:

  • What the employee has done wrong.
  • How the employee is to perform his/her job in the future.
  • That it is a warning letter.
  • Reference to previous verbal/written warnings must be made.
  • Consequences to the employee if there is a further breach.
  • A date on which the improvements of poor performance (or incompetence) will be reviewed.
  • Reference to the employee's excuse should be made and dismissed as being unacceptable.
  • Warnings must state the employee's job is in jeopardy.

Warning letters are an important part of the dismissal process, and should be drafted carefully. If the dispute ever gets to Court, warning letters are scrutinised. It is wise to seek assistance if you have any doubts at all.

Sitting alongside these options is the three-stage Disciplinary Warning Process, involving:

  1. First Warning – often called the verbal warning, but should always be in writing. This is similar to a reprimand, is frequently time-bound (no further action taken if no further transgression of any sort for twelve months)
  2. Second Warning – as it states; also time-bound; also in writing. Must also state that any further transgression of any type within the period can lead to dismissal)
  3. Third Warning – instant dismissal.

Colour-Coding

One of the more popular approaches to the three-stage disciplinary warning process is to colour code the warnings to match traffic lights. So:

  • First Warning = green
  • Second Warning = amber (orange)
  • Third Warning = red.

This approach, utilising the colour of the paper the written warning was printed on, has been successfully adopted for some years and was originally advocated by regional employers’ associations. See the ECC templates for First and Second warning letters, Termination of employment - dismissal on notice and Termination of employment - dismissal without notice.

Common Pitfalls

Pitfall

Avoided by…

Predetermination of outcome

  • Keep your mind open, the staff member may have a reasonable explanation of events
  • Follow the process and don’t rush it
  • Use the adjournment recommended above to take time to re-read all the facts before making your decision
  • Be aware – what may appear to the staff member as pre-determination may in fact be an obvious transgression supported by the facts with equally obvious disciplinary result!

Lack of genuineness

  • Take your time
  • Be professional
  • Follow the process

Insufficient consultation

  • Don’t rush to process. If an investigation is required, ensure adequate time is given to contacting all concerned for their views
  • Give adequate notice before meetings with the staff member; be open (within reason) to requests for extension of time

Inadequate time to improve

  • When working with a staff member on a remedial performance development plan, ensure the timetable is realistic (as a guide, expect a remedial plan to take three to six months minimum to show a positive result)

No representation (support person)

  • This is a cardinal sin! Always, when arranging performance management meetings with a staff member, explain the purpose of the meeting, the possible outcome, and the right of the staff member to bring a support person
  • Further, you should have a support person present as well.

Incomplete record of events

  • Write everything down. Write down what you said; write down what they said. Use a support person of your own to help with this.
  • When the meeting finishes, write back to the person reflecting what the meeting covered, the key points made by both sides and the (agreed) outcome. Invite them to let you know if their account differs from yours.

Grounds for Personal Grievance

Any staff member feeling aggrieved under the terms of their employment agreement has 90 days with which to lodge a personal grievance with the Employment Disputes Tribunal or directly with the Employment Court. In all cases, the tribunal/court will look for evidence that the matter has first been brought to the employer’s attention for action and that the result was unsatisfactory to the employee. A test of “reasonableness” will apply.

Typical grounds include:

  • Unjustified dismissal
  • Employee’s employment, or conditions, disadvantaged by unjustifiable employer action
  • Discrimination
  • Sexual harassment
  • Duress.

Workplace Bullying

As an employer, you must take all practicable steps to ensure the safety of your employees while at work. This includes protecting them from others’ behaviour including bullying such as assault or abusive language.

Bullying behaviour may be defined as a hazard under the Health and Safety in Employment Act 1992 or as harassment under the Human Rights Act 1993. If you breach your obligations under either of these then you and your business may be liable for significant fines.

Additionally, under the Employment Relations Act 2000 recent decisions have held that employees have been unjustifiably disadvantaged or constructively dismissed where the employer did not act on complaints of bullying and harassment. We recommend you call us immediately if an employee mentions bullying or harassment is an issue and we can advise you on how to proceed.

Aside from legislative penalties bullying impacts productivity in the workplace and can lead to increased absence, poor performance and high turnover. It is therefore important to ensure that a Bullying Prevention Policy is in place and that investigation procedures are followed promptly if a complaint is made. Training should also be provided to ensure that all employees are aware of the policy and procedures. We can help review or draft policies and procedures to reduce the likelihood of issues in future.

Drugs & Alcohol in the Workplace

As an employer you are expected to ensure the safety of your employees while they are at work. This means taking all practicable steps such as identifying the potential harm if individuals are under the influence of alcohol and/or drugs on your premises and where appropriate introducing drug testing in the workplace.

Many employers choose to implement a testing regime to meet their obligations under the Health and Safety at Work Act 2015.However, this needs to be balanced with the effect on basic individual rights under the Human Rights Act 1993 and privacy considerations as covered by the Privacy Act 1993.

There are several different options in regards to testing which you may consider:

  • Pre-employment testing - where offers of employment are conditional upon the candidate returning a negative drug test.
  • Reasonable Suspicion - where an employee’s appearance, behaviour or conduct suggests drugs and/or alcohol may be impacting on their ability to work effectively and safely they are subject to a test.
  • Post-Accident or Incident testing - where an employee may be mandatorily tested where they are involved in an accident or incident where their actions may have contributed to the event.
  • Random testing – where an employee may be randomly selected for testing. This has the greatest impact on individual rights and privacy and therefore is only common in high risk industries.

If you wish to implement drug or alcohol testing then your Employment Agreement should include provisions covering the use of drugs and alcohol in the workplace, including the right to require drug testing.

We would also recommend publishing a detailed policy on Drugs and Alcohol including the applicable procedures and information on rehabilitation assistance.

Restructuring

An early childhood centre may undergo change in response to economic pressures, changes in the marketplace, a business decision to sell or contract out all or part of a centre’s services, or product and service changes.

Changes in the workplace can be driven by a number of factors some of which include responding to economic pressures, changes in the marketplace, a business decision to sell or contract out all or part of a centre’s services, or product and service changes.

Guide to Restructuring

If you are considering restructuring your centre, there are three suggested stages of introducing a restructuring plan with affected personnel: consultation, implementation and resolution. You are required to observe any restructuring policies, or terms contained in the ECE Collective Employment Agreement (if this applies to your centre) and/or any other applicable Employment Agreement.

Stage One - Consultation

  • Initially convey your restructuring intentions to your staff as a proposed idea for discussion rather than as a pre-determined decision.
  • Provide all staff with an opportunity to express their opinions and views on the idea. Foster a spirit of consultation and express a willingness to listen to new ideas, suggestions and alternative options from them.
  • Ensure that staff feel they are contributors to a combined solution to the current problems affecting your business. In some instances they may come up with creative solutions that you had not thought of. A good consultation process should bring these out.
  • Give staff time to absorb your proposals and invite their further feedback after a set period of time.
  • Consider staff feedback and then based on the generated feedback, make a definite decision about what you are going to do and what positions are sustainable and which ones are not. At this stage make reference to affected positions not individual staff members.
  • Clearly communicate your decisions to all relevant staff members and outline quite explicitly what will happen next. Staff need to have clear information on what will happen as they are prone to uncertainty and confusion if matters are left up in the air at this stage.

Stage Two - Implementation

The restructuring of staff positions can be undertaken in three defined ways:

  1. Reconfirmation
    • Some staff can be reconfirmed in the same or similar positions to their existing ones within the centre
  2. Re-assignment
    • Other staff with suitably transferable skills can be presented with the option of being re-assigned to another available position within the centre
  3. Redundancy
    • The positions that are considered unsustainable will be those that could be made redundant.
  • Explain the implementation and decision-making process to your staff as clearly as possible to convey a sense of transparency and fairness. Be upfront and honest with staff about the current situation and explain why there is a need to make changes. Staff are more likely to be understanding of the decisions if this is clearly made known to them.
  • Discuss with each affected staff member your plans to reconfirm, reassign or make their position redundant. Listen to their views and provide them with some time to consider your decision. Finally ensure that you obtain written confirmation from staff who accept your offer to retain them within the restructured business.
  • Once staff have been confirmed in their restructured positions it is important that your presented plan should no longer be open to negotiation. Be decisive. Indecision at this stage only gives rise to confusion and internal division amongst staff in the hope of influencing or changing decisions.

Stage Three - Resolution

  • At this stage every effort should be made to address and resolve any issues and problems that may exist with affected staff.
  • Ensure that reconfirmed and re-assigned staff feel reassured by the implemented changes and well-resourced to adequately undertake their new duties. Failure to satisfactorily bed-in new changes with existing personnel can leave them feeling vulnerable and uncertain about their position. It is important to instil a sense of new opportunity and renewal amongst staff retained after restructuring.
  • For employees whose positions are being made redundant, conduct a consultation session with each one to explain the terms of their employment agreement and what you are prepared to do for them. Ensure that each affected employee is provided with the opportunity to have a support person present at this meeting should they desire this. Elicit their feedback and provide them with the opportunity to air their concerns and discuss what you can and cannot do to address these. It is equally important to specifically record and document these sessions with an independent note-taker.
  • Invite affected staff to converse with you further about any problems that they are experiencing. They should see you as a source of support.
  • Try to make provision for the future job prospects of those employees in soon-to-be redundant positions. During their notice period consider granting them time off to attend job interviews. Make specific and clearly defined boundaries for these provisions.
  • In instances where a staff member expresses a grievance with the process followed it is important that this is firstly discussed in a meeting with them and a genuine attempt is made to satisfactorily resolve the issue between yourselves. Again ensure that the employee has a support person present at such a meeting if required.
  • In this meeting try to conduct an open, honest, respectful and supportive environment. Look for common ground where both sides are in agreement and develop ways to accommodate acceptable variations to that. Encourage collaboration towards a solution. Don't give advice, judge, discount, sympathise, invade or takeover the other person’s viewpoint. Be clear and upfront about what you can and cannot do and clearly define and record any mutually agreed outcome.
  • Should there still be no way to satisfactorily resolve a grievance between yourselves then the Employment Service provides mediation services that may be of assistance in resolving disputes that may develop.

About mediation

Employment Services provides mediation services to help people resolve their employment relations problems quickly and effectively.

The Employment Services first priority is to prevent employment relationship problems occurring in the first place by providing information to help employers and employees develop and maintain productive employment relationships. If there are problems that employers and employees are unable to resolve themselves, they can approach the Employment Service to seek assistance. Assistance can be provided in a range of ways from provision of information, facilitation, educational events or programmes, or mediation.

The Employment Service has mediation services available in offices around the country. You can either call their Contact Centre on 0800 20 90 20 or contact directly one of their offices that provide mediation services.

Alternative dispute resolution procedures

Employers and employees can choose to use a private mediator or arbitrator to assist them in resolving any problems. They should, however, be aware that any settlement or decision would have no status under the Employment Relations Act. If, however, they want such a settlement or decision to be final and binding, they need to have it signed by an Employment Service mediator (see “Reaching agreement” above).

Where to go for more help

Further information on dealing with restructuring and redundancy issues can be obtained from Employment New Zealand

  • contact a lawyer or other professional advisor
  • contact the ECC on 0800 742 742
  • contact Employment via their website www.employment.govt.nz or call 0800 20 90 20 business hours.

Abandonment of Employment

This is where the employee is deemed to have terminated their employment by being absent for a defined period, usually in the employment agreement, without authorisation, notification or good reason. There may still be obligations on the employer to attempt to contact the employee and consider any explanations, please call us for advice on how to proceed.

Dismissal

  • Constructive Dismissal

This is where the employee resigns due to a breach by or pressure from their employer. This can include the employer following a course of conduct which coerces the employee to resign or breaching a duty which leads to a resignation.

  • Incapacity

This is where the employee is incapable of performing their duties due to sickness or injury for a period of time and the employer cannot keep the employee’s position open for them. Prior to dismissal the employer should request medical advice, consider reasonable adjustments and whether the individual has exhausted their leave entitlements, identify whether it is a key role and ensure that they follow a fair process.

  • Incompatibility

This is where there is a fundamental breakdown in the relationship with the employee meaning they can no longer work together with the employer or others. Generally sustained conflict or disharmony is required to justify dismissal and the employer is expected to have attempted to have resolved the conflict, warned the parties involved of the issue and potential consequences and allowed an opportunity for improvement. The nature of the industry and the size of the workplace should also be considered.

  • Poor Performance and Misconduct

This is where the employer follows a performance management or disciplinary process to dismiss an employee. Dismissal must be both substantively justifiable and procedurally fair, please refer to our overview of the Disciplinary Process for further information.

  • Redundancy

This is a form of dismissal where the employee’s position is superfluous to the employer’s needs. Part 6A of the Employment Relations Act applies in cases of restructuring where work is contracted out or the business is transferred or sold. Redundancy must be substantively justified and procedurally fair. Please refer to our guidance on Redundancy and Restructuring for further information.

Frustration of Contract

This is where there is an outside event or extraneous change of situation, which has occurred without the fault or default of either party, that makes it impossible for the contract to be performed.

Resignation

This is where an employee voluntarily resigns and should provide notice as per their employment agreement. If the employee resigns in the heat of the moment it is recommended that a cooling-off period is allowed before the resignation is accepted.

If an employee verbally resigns, consider:

  • Applying the “cooling-off” period approach; and/or
  • Put the details in writing a day or two later to the employee and ask for their confirmation

Employees can challenge dismissals using the personal grievance procedure under the Employment Relations Act 2000

Redundancy

A redundancy happens when a centre ends an employee’s employment because:

  • a position filled by an employee is no longer needed, or
  • the employer has made a genuine decision for commercial reasons to discontinue employment.

An employer must have a genuine work-related reason for a redundancy. These include:

  • cutting staff numbers to increase business efficiency
  • restructuring centre operations, including a change in the centre’s roles or location
  • closure of the centre
  • outsourcing, and
  • sale of the centre.

Generally, redundancy is about the position, not the staff member.

This section provides information for employers who are facing a redundancy situation, and information on the services and support available to them.

Guidelines for Centre Managers

A Centre Manager must have a genuine work-related reason for a redundancy. You cannot make an employee’s position redundant for reasons relating to the employee personally (such as the employee’s performance).

It is important to check the employee’s employment agreement and any relevant centre policies before pursuing a course which may result in a redundancy.

Process

Centre Managers and employees must act in good faith throughout the process.

If you are thinking of making staff redundant, you must consult with the employees concerned and their union, if they are covered by a collective agreement. You must give the employee(s) relevant information (for example, about the problems you perceive and your goals) so they can make a meaningful contribution, and the opportunity to comment on that information before the final decision on the redundancy proposal is made.

If the employment agreement contains a process to be followed in redundancy situations, then you must follow this process.

You must follow a fair process. This could include:

  • giving appropriate notice about any redundancy proposal
  • being open minded to alternatives to redundancy, such as redeployment, and
  • offering counselling and career advice services.

Notice

When a decision to proceed with a redundancy is made, notice will need to be given to the employee. The required period of notice should be in the employment agreement.

Employees can work out the required notice period, or you can pay them for the notice period.

Compensation

Generally, there is no right to redundancy compensation unless Centre Managers and employees and/or their union have agreed to it. This can be done before or after an actual redundancy is planned. It is also up to the parties to decide what any redundancy compensation should be.

However, in some restructuring situations, employees (who do certain catering, cleaning, caretaking, laundry and orderly work) can ask the Employment Relations Authority to decide what redundancy entitlements they should receive.

"Specified groups of employees" have the right to transfer to the new employer on their existing terms and conditions of employment. These specified groups of employees include those working at your centre, who are involved in providing catering work, cleaning work or laundry work.

Payment for annual holidays

An employee’s annual leave entitlement should be included in their final pay.

Challenging redundancy

Employees can raise a personal grievance if they believe their employer has acted unjustifiably.

Support available

  • There is support and advice available to you, as a member of the ECC, from our national office. Contact us on 0800 742 742.
  • contact a lawyer or other professional advisor
  • contact the Employment Service via their website

    https://www.employment.govt.nz/ or call 0800 20 90 20 during business hours.

Personal Grievances

A personal grievance is when an employee makes you aware that they are unhappy about their treatment during employment or their dismissal. They may raise it formally in writing but it could be they tell you verbally or just document the issues in their resignation letter.

Under s103 of the Employment Relations Act 2000, an employee may take personal grievance action against an employer or former employer when they claim to have been:

  • unjustifiably dismissed;
  • disadvantaged by an unjustifiable action by the employer;
  • discriminated against;
  • sexually harassed;
  • racially harassed;
  • subject to duress in relation to union membership; or
  • disadvantaged by the employer’s failure to comply with Part 6A of the Act.

An employee who wishes to raise a personal grievance must do so within 90 days of the date on which the action occurred or came to their notice, whichever is the later, unless you consent to it being raised after the expiration of that period or there are exceptional circumstances.

If unable to be resolved between the parties then the grievance can be taken to mediation. If resolution does not occur at mediation the claim may be filed in the Employment Relations Authority where remedies may include reinstatement, reimbursement of wages, compensation for humiliation, loss of dignity, and injury to the feelings of the employee and other compensation and penalties. The determination of the ERA can be appealed to the Employment Court.

References versus Statement of Service

A reference is usually written and is a letter that expresses the opinion of someone (usually the employer) about the performance of someone else (usually the employee). A statement of service is a document that details the facts of an employee’s service with a centre.

References are risky and for that reason becoming less popular. Would you write a reference for a departing staff member who had not performed well in their role at your centre? To do so may project an inaccurate image of the staff member to a future prospective employer. The expression of opinion about the person’s performance in their role at your centre may also not marry up with a different role the person seeks in future. For these reasons, it is not recommended that you write a reference for a departing member of staff.

A well-written statement of service details when the staff member was employed at your centre; what their original job was, whether and when they were promoted or changed roles within your centre; any training they may have received; specific achievements; performance management issues; attendance, etc. It is a statement of fact. There is no opinion added. It is normal for the employer to make a brief statement at the bottom of a statement of service, offering to receive telephone reference calls in respect of the staff member. We recommend you use the ECC’s template for Statement of Service.

Teachers, Issues and the Education Council

There are certain situations when a Centre Manager must inform the Education Council of concerns that they have about a teacher's conduct or competence.

If a teacher is still employed at the Centre, the Centre must have attempted to address the concerns before reporting to the Education Council, except in cases of alleged serious misconduct which must be reported directly to the Education Council.

Requirements for mandatory reporting

All employers must report to the Education Council when:

  • a teacher is dismissed for any reason (s139AK(1), Education Act 1989);
  • a teacher resigns from a teaching position if, within the 12 months preceding the resignation, the employer had advised the teacher that it was dissatisfied with, or intended to investigate, any aspect of the conduct of the teacher, or the teacher's competence (s139AK(2), Education Act );
  • a teacher ceases to be employed by the employer, and within the following 12 months, the employer receives a complaint about the teacher's conduct or competence while he or she was an employee (s139AL, Education Act);
  • they have reason to believe that the teacher has engaged in serious misconduct (s139AM, Education Act);
  • they are satisfied that, despite undertaking competency procedures with the teacher, the teacher has not reached the required level of competence (s139AN, Education Act).

This means that all employment-related matters must be addressed by the Centre first; and then a mandatory report submitted to the Education Council.

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FAQs

Question: Can my actions as an employer override the terms of the agreement? Answer: Yes. This is important to remember. For example, if you start regularly paying wages in excess of the agreement, or provide additional annual or sick leave, then these automatically become an unwritten part of the agreement and are legally binding. You do not have to record these changes in writing.

Case Studies

Lead to Succeed

What does it take to be the best?

Craig Lewis’ book,‘Lead to Succeed: what it takes to be the best’ (HarperCollins NZ 2007), names 10 key steps to successful leadership:

1. Adopt the kaizen approach – ‘a critical leadership technique that revolves around a feeling of dependence on one another that culminates in respect for each other, mutual accountability, communication and a power derived from a united pride in performance.’ P.23

2. Think big – focus on your vision.

3. Focus on process to create a great environment.

4. Develop empathy (learn to sense feelings, needs and concerns of others).

5. Establish a positive mindset amongst staff and all involved.

6. Create an atmosphere that gives staff confidence and is challenging.

7. Promote a feeling of ownership amongst staff and parents by promoting independent decision making and shared ownership. This increases job satisfaction and work performance – crucial for high quality ECE.

8. Continually research the best standards.

9. Use systems thinking.

10. Develop excellent communication amongst all involved.

Another book on organisational change (The Heart of Change by John P. Kotter and Dan S. Cohen) says you cannot rely solely on continuous improvement anymore. Things change too fast. You need to also read the context you operate in all the time and be prepared to make big shifts. Their message is to grab opportunities and avoid hazards.

Another key point in this book is that ‘see-feel-change’ is more effective than ‘analysis-think-change’. That is people believe what they see more than what they think or are told. So work with staff emotions and model any change you want.

Finally, a book called‘Why Change Doesn’t Work’ by Harvey Robbins and Michael Finley (1996) says people thrive under creative challenge and wilt under stress. They advise avoiding bureaucracy, commands, hierarchy and homogeneity (treating everyone the same).

‘The way to make effective long-term change is to first visualise what you want to accomplish, and then inhabit this vision until it comes true.’.

‘Change is an act of the imagination. Until the imagination is engaged, no important change can occur.’.


For more information contact information@ecc.org.nz or phone 0800 742 742

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Useful Links

www.employment.govt.nz

https://educationcouncil.org.nz/

http://www.legislation.govt.nz/act/public/1989/0080/latest/DLM175959.html (Education Act 1989)

http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304212.html (Human Rights Act 1993)

http://www.legislation.govt.nz/act/public/2000/0024/latest/DLM58317.html (Employment Relations Act 2000)

http://www.legislation.govt.nz/act/public/1993/0028/214.0/DLM296639.html (Privacy Act 1993)

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References

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