Q1) Fixed term agreementSony works for South Auckland Institute of Business; she was pregnant and went on a maternity leave. In order to fill the gap, the organisation hired Shirley on a full time basis. However, when Sony was returning from her Maternity she was told that they don't need her anymore as "Shelly has taken over" and her performance has been extraordinary, in fact much better then what Sony was ever able to produce. She was told that is now a surplus to the requirement.Question: Advise Sony if the employer is correct in taking that decision (3 marks)Q2) Casual and part timeDavid has a family business specialising in winemaking. Since his 2 adult children now want to locate to Australia, he needs 2 workers to assist him at his winery in Waiheke Island. He needs one worker for 3 hours per day, 15 hours per week in total and the other worker for the summer only when there is a peak in business activity. Question: Advise David a) With full justification on the choice of employment arrangement, he should use for both the workers ( 2 marks)b) What does it mean when a casual employee can drift into a permanent employee ( 2 marks)Q3) Trial periodRavi was employed on a fixed term contract for 6 months at a local accounting firm. After 6 months were over he was told by the manager that they were pleased with him and offered him full time employment. The new employment agreement did not contain any trial period clause. Ravi was delighted, however after 2 months of working the manager told him that they are not happy with his performance after giving him full time; the manager stated that "he has slacked off". Ravi was told not to come to work anymore and that he was on a 90 day trial period when he was offered the full time contract. Question: Advise Ravi whether the manager is right under the law relating to trial periods. (3 marks)Q4) Union membershipLin works for a leading fast food company franchise in Auckland. He joined the union as he was pressured by his workmate who helped him get a job there. After 6 months of employment Lin wanted to opt out of his union membership as one day after work while having a drink at the bar with the manager, the manager said that he can get him a pay rise if he opts out of union membership. The manager said unions are nothing but a nuisance and that Lin should stay out of it. His mate said that he is not a team player and that he has let him down. Further Lin was told that he will have to pay a penalty to the union.Question: Discuss the legality of Lin's friend's behaviour and the manager in relation to what you know about Union membership. (3 marks)Question 5: Negotiation - Lo5 (20%)Read the case studies provided below and answer the questions at the end of each case studyCase Study 1:Creating and Claiming ValueBackground:Steve is a senior IT Development Consultant and Team Leader at MBS Enterprises, subject to an individual Employment Agreement. Although Steve found his work to be satisfying, he never really found the time he needed to take stock and see if he was being paid his true worth. Projects were never ending and always somehow high priority and urgent. So after being badgered by his partner, Steve told his employer that he was going away for a long weekend, and used his time to search the internet for positions offering comparative salaries in similar companies. At first Steve felt uncomfortable about the thought of leaving his employer, and persuaded himself that he was "just gathering information". Steve's job discoveries surprised him. Despite his annual salary reviews, Steve found he could possibly get 15-35% more. Unsure of whether the jobs were that similar, Steve decided to contact the companies and agencies responsible for placing the advertisements.Steve wrote his most important questions down, and then took notes from each confidential telephone conversation. Some were ruled out for requiring relocation or unsociable hours. The three positions that remained were just too interesting not to take further. So Steve interviewed for these positions, still just curious to know what he was really worth. After receiving attractive written offers from two companies, Steve decided to go back to have a talk with his current manager who then arranged for Steve to meet with the whole management team to discuss the conditions of his employment agreement which in particular referred to his salary package.Negotiation Process:Before the week of the meeting, Steve wrote down his objectives, two of which included creating and claiming value. His aim was to create value by listening very carefully to the employers needs and interests (expanding the pie), and claim value by getting his needs and interests met. While preparing for the meeting, Steve's partner advised him to adequately identify his interests and prepare a BATNA (Best Alternative to a Negotiate Agreement) as these were the two factors that keep most negotiations from being as effective as they could. Steve made sure he knew his own unique selling points, and was clear about what skills, knowledge and experience he had to offer the company. He was aware that his success in negotiating a higher compensation package is contingent on the data he had already collected which suggests his market value is higher than what he is currently getting paid. Steve also knew exactly what he wanted and knew where he was willing to compromise by re-evaluating his total compensation package (base; salary, perks, bonuses, relocation costs). To his advantage, Steve was confident he knew the job and was positive that his skills and expertise were of great merit to the organization. It wasn't easy to think seriously about leaving his company and team mates. Steve wrote to his manager requesting for a meeting on his wages. Within a week, the manager responded setting the meeting for the following week. In the meeting, Steve stressed on how much he enjoyed his job, and how he believed in what the company was doing and how he would like to continue his career with them. He shared that two recent more attractive offers were forcing him to reconsider his options, and asked what his manager could do to make it attractive enough for him to stay. Steve felt that he was realistic about what he wanted and stated his evidence to clearly prove why he felt his salary should be higher. The negotiation was conducted in such a way that the flow of information was free and open and both parties shared information openly. Both parties made attempts to understand what the other side really needed and wanted. They focused their attention on commonalities and emphasized on common goals, objectives and interests. The negotiation process was one where the parties to the employment relationship dealt with each in good faith, which included not doing anything (directly or indirectly) that would mislead or deceive the other. Both Steve and the management team were active and constructive in achieving employment relationships in which the parties are, among other things, responsive and communicative.Both Steve and the management team focused their commitment to meeting the needs of all involved parties, exchanged information and ideas, invented options for mutual gain, used objective criteria to set standards, and kept decisions tentative and conditional until the final proposal was complete.Conclusion:As a result of the negotiation, the company realized how valuable Steve was to the company and a week later, Steve's salary (including bonuses) were boosted by 30%, with most of his other requests (which had been dismissed in the past) honoured. Q5 a): Identify the legal framework applicable to such negotiations and provide examples of good faith which was demonstrated between the two parties. (5 marks)Q5 b): Discuss with examples from the case which style of negotiation was adopted by both parties. (5 marks)Case study 2Trafalgar Breweries Ltd (TBL) is one of Nelson's oldest companies. It has been family owned by the MacBlack family since 1886, and its current chairman is Hamish MacBlack. TBL's 'Horatio's Special' is a popular beer that has been successfully exported to Europe and the Far East in the past 10 years. With the high dollar value starting to have an effect on sales, TBL have struggled to keep up with demand although staff numbers have increased by 100% in the last five years. Traditionally, TBL management style has been paternalistic and the workforce has generally been content with this set up. However, in the last few years, as staff numbers have grown and more professional managers have been appointed, the old 'family' feel of TBL has fallen away. Consequently, an increasing number of workers have joined the Brewery and Allied Workers Union (BAWU). With union membership now 60% of the non managerial workforce, BAWU organisers believe that they set the terms for the TBL workforce as a whole. The success of TBL has attracted the attention of certain large breweries. A recent article in the National Business Times suggested that it was likely that TBL would either list on the New Zealand Stock Exchange or enter into a private deal with Southern Amalgamated Breweries Ltd (SABL) which owns 80% of the breweries in the South Island. If a deal went through with SABL, the article suggested that some production process could be moved to Christchurch. Such a shift in production would enable TBL to meet increased demand but could also lead to around 50% layoffs in Nelson.Basic terms of employment(In practice, non unionised workers automatically receive the same terms as the collective agreement between TBL and BAWU. Although some long serving non unionised workers receive additional benefits, such as an additional 3 days annual holiday.)Under the current collective agreement: Workers earn between $17 and $20 per hour based on skills and experience. (This rate is 2 – 3% lower than industry norms.)  The working week is 38 hours. Consequently, many workers have been earning considerable overtime pay. (The industry norm is 40 hours per week).  Redundancy compensation of one week's wage is payable for every two years of service. (In fact, TBL has never laid staff off against their will.)Extra notesIn Christchurch there is an oversupply of brewing workers hence finding well trained and skilled works will not be an issue.TBL is happy to take the non-redundant staff with them, however, naturally the staff must be willing to re locate themselves.TBL wants to enter into negotiations regarding putting a proposal for package in the agreement for staff who might be made redundant. TBL doesn't have to do it under the law as they already have one-week payment for every 2 years of service, but they want to increase it to 4 weeks' pay. This the company believe will make them look generous and show they are going the extra mile. They know they will get media exposure when staff will be made redundant hence want to minimise the bad publicity.Q 5 c): Given what you know about the different type negotiation strategies, discuss which strategy the company is more suited to follow when they meet with the union for negotiation (5 marks)LO6 (20%)Q6) Expiry of fixed term agreementAmy was employed on a fixed term employment agreement by Kay Ltd. The employment agreement states Amy's employment is for a period of 6 months to work on a one off specific project. She continued to work beyond the 6 months period and was offered another fixed term agreement 1 month after the expiry of the first one, now she is on her 18th month but has not been given any more contracts after the first two. Two days ago Amy was told that the company has hired another worker to do her job as she is more economical. Amy told the boss that this not fair, however, the boss told her that since her fixed term employment had expired 6 months ago she is not entitled to any expectation for ongoing employment anyway. Question: Amy had hired you as an ER consultant. Advice Amy if she has a good case or not (3 marks) Q7) Poor performanceWhen dismissing an employee due to poor performance there is a high threshold on the employers under the law. The manager of BB sales Ltd has hired you to deal with poor sales performance for one of its worker Joe who has been working for the last 4 months. The sales performance has been very poor for the 4th month, where Joe has failed to reach the target. Question: The manager has hired you as an ER consultant for advice on how to fire Joe due to poor performance in a legal manner if it happens again on the 5th month. Advise the manager on the process that needs to be followed in such a case. (6 marks)Q8) Abandonment of employmentWillie who was met with a car accident has not come to work for the last four days and neither has he communicated with his employer. The company policy makes it very clear that any unexplained absence for more than three days will mean that the employee has "abandoned the employment". One week later after getting discharged from the coma, Willie calls his boss, but by then the boss has hired a new staff and has told him that he should have read and understood the company policy clearly.Question: Briefly discuss if Willie's boss is right to enforce the company policy strictly in this situation (3 marks)Q9) ResignationCam tendered his resignation letter immediately after a heated argument with his employer. The next day Cam regretted his action and wishes to meet his employer to explain his point of view and withdraw his resignation. The employer said, I am sorry Cam it is all over, once you put your resignation on paper that is full and final.Question: Explain the legal requirements expected of his employer in relation to Cam's resignation. (3 marks)Q10) Redundancy Patrick Murphy was terminated from his job as a sports announcer for TV 6, he was told that he was "redundant" due to lack of government funding for his programme. He has since found out that his job is to be undertaken by another person, who had done the same job some 8 years before. The new sports reader has been taken out of retirement and flies up from Wellington to do the job 5 nights a week.Question: Patrick who has no knowledge about redundancy has asked for your help in establishing whether his redundancy was lawful or not. (3 marks)Q11) Misconduct and serious misconductCase A:Shawn works as a tutor for Queen Street Academy on a fixed term agreement, one day he came to class late by 45 minutes, students have complained to the programme leader (PL) and the PL has terminated him on the grounds of misconduct since it is a written policy that no teacher should be late to class.Question: Shawn has hired you as an employment advocate as he feels the decision was not fair and he wants to take a PG. As an advisor appraise the merits of Shawn's claim. (3 marks)Case B: Sextus is employed as a systems designer by Tarquin Industries Ltd. Sextus is a cheerful, outgoing person. Lucretia is also employed as a systems designer by TIL. Lars, the systems manager, puts Sextus and Lucretia on a project team to redesign the payroll system for TIL. The task is complex and there is a deadline which means that Sextus and Lucretia are required to spend a good deal of time in each other's company. Because they often work late they frequently have a meal together as a break. While at local restaurant on one of these 'breaks' Sextus puts his hand on Lucretia's knee and asks her to come back to his place after work. Lucretia is shocked and upset and goes home. The next day Lucretia complains to Lars about Sextus's behaviour and asks him to terminate Sextus on the basis of serious misconduct. Lars says that anything outside work is not an issue he can deal with.Question: Draft an opinion for Lars setting out the obligations of TIL in this matter and how the affair should be handled to avoid a personal grievance being taken by either Lucretia or Sextus. (4 marks)Q12) Unjustified dismissal/Constructive dismissalMao was working for a Japanese restaurant, she was been abused by a fellow work mate, often called her 'sexy, hey babe, hotty' while working together, Mao complaint to the manager Doni few time about the issue as she felt uncomfortable and also embarrassed in front of other workers and customers. The manager said to Mao that she needs to grow up and get on with the job rather then complaining about small issues. Mao has been depressed due to this and since she did not want to go to work anymore she has resigned today immediately. The owner said she can't resign and walk away without giving a 4 week notice, he said she won't get paid for the last 2 weeks of work including holiday pay. Mao now wants to take a personal grievance. Question: Advice Mao why she has a potential claim for constructive dismissal. (3 marks)Q13) LAWFUL TERMINATIONDr Hans Wagner was a lecturer in Marketing at No name University. He was 29 years old, and had one year's experience as a lecturer. Hans had only been in New Zealand for one year, having emigrated from Germany where he had been a student at the University of Berlin. Professor Alan Wilson was Hans' head of department. As head of department, Alan was in charge of all human resource decisions affecting his staff. Part of his job included monitoring the staff's research and teaching performance. Unfortunately for Hans, his teaching performance had been relatively poor, with student ratings of generally between 3 to 4 (on a scale of 1 to 5, with 5 being the lowest score). This was worse than three quarters of the staff in the School of Business. However, in a recent 4thyear course which he had not taught before, his ratings were even worse that usual. Most students rated him as either 4 or 4.5 on the criteria in the student evaluations. Alan was very concerned about this development. He had already told Hans that he 'needed to improve' during a discussion about his teaching performance in the previous semester. He called Hans to his office, explained to him that this performance was 'not acceptable' and said that he would have to 'let Hans go'. Hans felt humiliated. When Alan asked him to explain further his poor performance, Hans, not wanting to drag out the interview longer than absolutely necessary, told him he had other appointments to go to. Alan gave him a letter of dismissal.Questions:a) Do you think Alan had substantive grounds to dismiss Hans? (2 marks)b) Do you think Alan followed the requirement of procedural fairness in dismissing Hans, if not, what procedures should have been followed in this case ( 4 marks)c) Discuss whether progressive warnings system were adequately followed by Alan (3 marks)d) Hans want to take out a personal grievance, explain to him the process he needs to follow with the employer at the start (2 marks)e) Alan has been advised by the university to participate in mediation and sort this out with Hans as it doesn't look good for the university brand. Hans is no familiar with mediation and seeks your advice on the following doubts he has (4 marks)i) Can he skip the process of mediation and go directly to employment relations authority?ii) Whose side does the mediator usually take and do they the power to make a binding decision on behalf of Hans and Alan? f) The mediation between Hans an Alan have failed, advice Hans which authority he can go to next, how is the investigation at the authority carried out, and what remedies may the institution provideg) Hans has been given his job back after going to the authority; however, Alan is still not happy and believes he is right.i) Explain to him which option is available for Alan to challenge this decision and how much time he has by which he must file.ii) Whether the process starts all over again or aspects of it can be heard.Q14) Unjustified dismissal/fair and reasonable employer standardAdriana seeks your assistance. She tells you that she was unjustifiably dismissed by her former employer two weeks ago. She said that she was employed as a permanent part-time receptionist/office manager at the High Street Podiatry Clinic and had worked for the owner Mr. Johnny Fill for some two and half years.Adriana said that prior to her termination, she was not aware of any problems with her employment and had not received any warnings. Some money ($245) went missing from the petty cash draw while she was out on an approved lunch break. She advised Mr. Fill on this and was told not to worry because it would probably turn up at the end of the day when cashing up. The money didn't show up when the cashing up was completed. Mr. Fill told her not to worry, and that it would probably turn up. The next day Adriana searched for the missing money. Again she was told Mr. Fill not to worry to about it.Mr. Fill didn't accuse her of taking money. Nor did she have any reason to believe that Mr. Fill suspected her of having done so but the next day when she attended work she was told she was required to make good the loss as the had been under her care. Adriana was advised in writing by Mr. Fill that the $245 would be deducted from her bonus. Adriana said that she had no choice but to accept this as she needed her job to see her through university. She advised Mr. Fill that if she was going to have to bear the loss she wanted it reported to the police. Mr. fill told her that that would not be necessary as insurance would not make good the loss. Adriana said she told Mr. Fill she was reporting the loss to the police and did so.The next day Adriana was dismissed by email sent at 8.05 am. It said that her casual job had gone, due to the practice employing two full time staff, and following a restructuring there was no longer work available for her. She was asked to return keys and uniform to the practice. Questions:a) Explain with reasoning's whether Adrianna was unjustifiably dismissed. b) Do you think the employer followed what a fair and reasonable employer could have done in this situation? If no, identify the gaps. Q15) Personal Grievance: Your best friend has just come from Philippines on a business visa and has set up a Philippine ethnic grocery store. He has heard on the news that employees have recently been bringing out personal grievance against employers for unjustified dismissal. He knows you are studying ER and wants your help to understand further if there are other grounds on which an employee can take out a personal grievance.Question: Explain to him briefly 6 other ways a person can take out a personal grievance against an employer beyond that of unjustified dismissal