Restaurant Association The Thymes newsletter (May 2016) by Nicola Waldren

MAY 2015 MAY 2016

PHOTOS: MADAM WOO

www.restaurantnz.co.nz

05 to byo or not to byo more top 20 faq's

From ACC leave, to employee's leaving without notice, serious misconduct and 90 day trial dismissal - we've compiled a list of our top 20 Helpline queries and pick another selection of these to answer for you in this issue.

19 agreeing on hours & availability Over the past weeks employers have been struggling to meet the new obligations of the employment legislation which recently came into force. One of the hottest topics for the industry is around agreed hours of work and availability – the part of the legislation that aims to shut down “zero hour contracts”.

making workers part of health & safety

CONFIDENTIAL - MEMBERS ONLY

TACKLING OUR SKILL SHORTAGES HEAD-ON Is it harder than ever to recruit quality hospitality employees who meet the skill requirements to fill management roles in your business? Results of a new survey confirm that the emphatic answer to this question is “yes”. The member survey conducted by the Association on recruiting managers shows that a whopping 96 per cent of employers who have recruited for a manager over the past year have had difficulty in filling the role. More than 62 per cent said they had to repeatedly advertise for the position before a suitable candidate was found. And although this current survey focused on front of house managers, we are aware that recruitment for skilled chefs is just as extreme and they continue to be one of the hardest vacancies to fill. Our growing recruitment issues are being exacerbated by the needs of our burgeoning industry which it is expected may require an additional 50,000 workers by 2020.

CONTINUED

New Zealand’s hospitality industry has returned to a period of exponential growth. In 2015 sales across the hospitality industry grew by 10 per cent and new businesses continue to open to meet the demand of our discerning domestic dining public. International tourist visits are also at record levels, with no sign that this will abate (thank goodness). Visitors spent $8.7 billion for the year ending June 2015, and this is expected to grow by 11% from 2015-21 while visitor numbers will increase by 4%. That will equate to over 3.8 million visitors a year - each one of them needing workers to cater to their needs. As a result of this demand, however, competition for experienced staff is at its highest levels ever.

ANY SOLUTIONS? In the short term the Restaurant Association has the opportunity this month to campaign again for the Café, Restaurant Manager position to be re-admitted onto Immigration New Zealand’s Immediate Skill Shortage List (ISSL) and we will be strongly advocating for this to happen. While our case is strong, one of the hurdles we face in convincing Immigration New Zealand to add this occupation back onto the ISSL is around the qualification requirements of the industry’s employers for their Managers. The survey enforces the industry’s view that management experience, rather than qualifications are more valued. The survey indicates that a minimum of 3-5 years in a management role is the ideal experience level required for an employee joining your business at management level, however, 60 per cent of employers don’t expect any formal qualifications for a candidate. Were the role to be reinstated onto the ISSL, it is suggested that a NZ Registered Certificate (Level 5) would be the appropriate qualification requirement for someone in this position and this is where the industry and Government have an opposing view. Immigration New Zealand have indicated that when Managers were last on the ISSL, visas approved under this category were very small (only 10 per cent of the approved visas for this occupation) and this is because the visa applications did not meet the ISSL criteria.

Of the 871 visas approved for this position in the 2013/14 year, only 38 were approved using the ISSL, with the rest meeting approval through a labour market check. It is for this reason that Immigration will possibly find a lack of justification to add the role back onto the ISSL. We will be doing our best to change that view however and will keep members informed of our endeavours. In the long term, one of the solutions to managing our industry’s skill shortage issues is to retain those already in the industry and train them up to fill those skilled positions. Our industry has notoriously high staff turnover and when employees leave a job, they don’t always stay within hospitality. To address this we need to start thinking of the long term. As an industry we need to be extolling the benefits of a career in hospitality, which are wide and varied and the Restaurant Association sees this as one of our key responsibilities. Employees with management potential should be identified and nurtured, and given the skills they need to become great managers, rather than getting thrown into a role they are not yet ready for because of a vacancy shortfall within the business. While it may fulfill your short term requirements, an employee who becomes disillusioned due to a lack of knowledge and support will potentially leave the industry completely and this is a flow we need to stem. Providing your staff with opportunities to continue learning is a good strategy to ensure they stay with you. The Restaurant Association’s Emerging Managers workshop is a great professional development opportunity for your rising managers to help them develop and fine tune their leadership skills. It is run by one of the industry’s most respected restaurateurs, Krishna Botica, and is currently “on the road” around the country to provide an opportunity for more employees to attend. A follow-up workshop, Established Managers, has also been developed to provide a more detailed look at hospitality management techniques, styles and systems. It is perfect for those who have attended Emerging Managers, or front of house or kitchen managers looking to develop their skills further. As you will also be aware, the Restaurant Association is committed to working on initiatives to introduce more workers into the industry, as in the long term this will be essential to meet the industry’s employment demands. Our ProStart programme, which provides students with the basics of hospitality through a four week programme, is set to grow in the next weeks and months as we expand the current Auckland programme into the Bay of Plenty and Waikato regions as well. Graduates are motivated, keen to develop and seeking opportunities to work within our industry. We aim to supply people that will fit well within your respective businesses and once placed we continue the relationship with both employer and employee to ensure everything is working well. There is no denying that the recruitment challenges are there, but with our support and the industry’s willingness to embrace practical solutions to assist we see that there is an opportunity to build on some real solutions to our sector's current skilled staff shortages.

n the d give y are ed, an r he u t t r le u n to a ro d and own in entifie r h id t e g b in should er than gett iness. s ential nt pot nagers, rath ithin the bu e m e g a h man me great ma y shortfall w it w s e ye eco acanc Emplo ey need to b e of a v th becaus r skills fo y need help? call us on 0800 73 t read not ye

THE THYMES MAY 2016

FROM THE CEO’S DESK

MARISA BIDOIS, CEO Restaurant Association of NZ 09 632 1400 marisa@restaurantnz.co.nz www.restaurantnz.co.nz Restaurant-Associationof-New-Zealand restaurantnz

TOP TWENTY QUESTIONS In this issue we continue to answer your most frequently asked questions to our Helpline. Please do remember that we are always here to assist with these matters and have a variety of templates available so you do not need to start from scratch ~ we have done the work for you so please use this member service.

around the regions so please do make

There has also been quite a few questions rolling in about new legislation (Employment Relations Act and the Health and Safety at Work Act) coming through the Helpline. In this issue we have covered what now happens when you cancel a shift and also touch on agreeing on hours and availability ~ two very important changes to be aware of. Our Health and Safety Manual will be ready and available to members shortly. We will also have a template policy for you to use, so keep an eye out for these.

Nominations are also open for the Good Neighbour Award sponsored by American Express. If you donate your time to a great cause in your community or know someone who does please let us know.

In our next issue we will be focusing on the most frequently asked questions that come through our MentorMe programme. UPDATING BRAND AND WEBSITE

We are currently working on updating our website and re-looking at our brand with the idea of freshening up our look. We will be in touch with members throughout the process to get your feedback as we want you to be involved as much as possible. EVENTS

Hospitality awards are kicking off

sure you nominate, vote and purchase tickets to support your local event. We run and support a number of these types of awards around the country. We think it is an important platform for highlighting the industry’s success and an opportunity to acknowledge your achievements.

PROSTART

We will be starting our ProStart training programme in Tauranga on 27 June and in Hamilton on 11 July, so please do let us know if you are looking for entry level staff in your businesses as we will be able to assist you. For more information please get in touch with us. STAFF

I would like to welcome Lesina Uini to our team who joins us in the role of Receptionist at our head office. Lesina has a passion for our industry and has worked in customer service roles in hospitality and retail. Poncho Rivera-Pavon has also joined us as our Professional Development Manager, replacing Ian McLaughlan who is now contracting to the Association from his new home in Cambridge as one of our ProStart facilitators.

MARISA

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THE THYMES MAY 2016

PRESIDENT'S VIEWPOINT

TO BYO OR NOT TO BYO THAT IS THE QUESTION...

T MIKE EGAN, National President Restaurant Association of NZ mike@monsoonpoon.co.nz

he plethora of articles and opinions currently in the media around our drinking culture often add nothing new to the debate. It took seven years for Otto Groen to convince the powers that be that restaurant customers enjoying a glass of wine with their meal would not be the end of the world. From that landmark decision way back in 1961 until now, we have seen significant changes in attitudes towards drinking as well as a number of legislative changes which have both liberalised and demonised the industry. 1989 saw the relaxing of laws that enabled a proliferation of small bars as the duopoly of the breweries was broken up. Up until then, to get a drink after 11pm on a Friday or Saturday or 10pm Monday to Thursday you had to go to one of the few nightclubs in town which had strict dress codes and a door charge. These new rules allowed small bars to open and cater to a specific market. Before these changes, the number of pub licences was restricted and there were only huge pubs in the city such as the ‘1860 Tavern’ in central Wellington, which in the early 1980’s was turning over $140,000 every week

($400,000 in today’s money). These huge pubs could be very violent back then as your customer base was too varied and often it was a powder keg like atmosphere—especially on a Saturday night with rival sports teams coming into town after pre-loading at the clubrooms. Checking of ID’s was merely a matter of asking someone their date of birth and if they recited it confidently, you were in—not so good if you had a stutter. Now with mandatory photo ID and controlled police purchase stings as well as punitive fines and potential business closing infringements, everyone is much better at helping reduce the harm of over indulging in alcohol. However, there is one group of licensed premises that seems to have been bypassed and that is the BYO. It’s now common for young people to use the BYO in the inner city to get around the liquor ban. By taking in copious amounts of alcohol and buying a couple of menu items to share, they can pre-load in the city at supermarket prices and then go off to the party bars to finish off the night.

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THE THYMES MAY 2016

The BYO restaurants do not seem to bother to ask for proof of age as they, I assume, think the young customer was already asked for this when they initially bought the wine. They also don’t seem to be too worried about intoxication as they do not seem to monitor consumption. How could they, as the advent of screw caps means you can just pull out bottle after bottle from your bag? In New Zealand, the culture for BYO is primarily to save cost and the wine supplied by the customer is often under the $10 mark. While other jurisdictions overseas allow BYO, it is to enable guests to bring a special bottle of wine to enjoy with the cuisine of the restaurant. In Los Angeles, the corkage is often about $30-$35 a bottle, with a limit of around two bottles per table. When you add tax and tip no one is going to bring a bottle of ‘eight-buck chuck’! If we are all serious about minimising the harm of alcohol then maybe it’s time to challenge the way some of the inner city BYO restaurants seem to tolerate behaviour that would not be permitted in fully licensed premises. Stopping customers having full control over their own supply of alcohol and minimum corkage rates could encourage the BYO businesses to join the rest of the industry who are already on board with positively changing the New Zealand drinking culture.

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FREQUENTLY

ASKED...

We've compiled a list of our top 20 Helpline queries and answered some of them in the last issue of The Thymes. In this second part of the series we answer some more of your most frequently asked questions. You can also check out www.restaurantnz.co.nz for answers to more of these common FAQ's, or give the Helpline a call.

YOUR TOP 20... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

My employee has left without notice/not given the required notice period. What can I do? Can I make a wage deduction? CHECK OUT PAGE 18 What breaks do I have to give my staff now? CHECK OUT THE THYMES MARCH 2016

I have a staff member who always calls in sick and it is affecting my business. What can I do? THE THYMES MARCH 2016 My employee has asked to “cash up” some holiday pay. Is this legal? THE THYMES MARCH 2016 My employee has gone on ACC and I don’t know when they are coming back to work. Do I have to hold their job open indefinitely? PAGE 9 My employee has not turned up to two shifts now. Have they effectively abandoned their employment? THE THYMES MARCH 2016

Can I instantly dismiss someone for serious misconduct? PAGE 12 My chef wants to be a contractor instead of an employee. Should I agree to this? CALL 0800 737 827 to discuss Do I have to pay my staff if I choose to close on public holidays? THE THYMES MARCH 2016 My employee has applied for leave but I need them in the business. Do I have to approve it? THE THYMES MARCH 2016 My employee is full-time but she now wants to study and work part-time. Do I have to agree to this? THE THYMES MARCH

2016

My employee is resigning but doesn’t want to work out their notice period. Do I have to pay the notice period out? PAGE 14 I am not happy with my employee’s performance. Can I give them a written warning? CALL 0800 737 827 to discuss What constitutes serious misconduct? PAGE 11 Do I have to support my employee’s application for a work visa? CALL 0800 737 827 to discuss My employee is on their 90 day trial period. Can I just tell them it is not working out and ask them not to come back? PAGE 15 What do I do if I have a food poisoning complaint? THE THYMES MARCH 2016

My employee has been caught taking from the tip jar. What do I do? CALL U0800 737 827 to discuss My employee’s role has changed. Do I have to give them a whole new employment agreement? THE THYMES MARCH 2016

How do I work out what an “otherwise working day” is for an employee? THE THYMES MARCH 2016

NEED HELP? Call us on 0800 737 827

THE THYMES NOVEMBER 2015

DO I HAVE TO HOLD THEIR JOB OPEN INDEFINITELY? My employee has gone on ACC

and I don’t know when they

are coming back to work. If you have an employee that has either injured themselves (inside or outside of the workplace) or is suffering from a long-term illness which prevents them from doing their job, you may be dealing with an “incapacity” situation. Dealing with these types of situations is never easy as an employer naturally feels sympathy for an employee who is sick or injured but, on the other hand, is keenly aware of the pressures facing the business in the employee’s continued absence, particularly if the employee’s role is key.

o, in answer to this commonly asked question, you do not have to keep an employee’s role open indefinitely - there is a time where an employer can “fairly cry halt.” However, there is an obligation on the employer to follow a careful process, which includes careful consideration of a number of factors. As always, an employer must act in good faith and be fair. The Employment Relations Act 2000, s 103A test for justification applies to any decision to dismiss: “whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred.” Case law has established the kind of factors that need to be considered by an employer who is considering dismissing an employee due to incapacity: •

•

THE TERMS AND CONDITIONS OF THE EMPLOYEE’S EMPLOYMENT. You will need to review the employee’s employment agreement and other company policies to see if there are any express obligations to provide the employee with reduced or alternative duties and if there is a clause which enables you as the employer to terminate the employee’s employment on the grounds of medical incapacity. The Restaurant Association employment agreement contains the following clause: “The Employer may terminate your employment on notice (which may be unpaid) if you become incapable of the proper ongoing performance of your usual duties as a result of physical or mental illness or injury.” You will be able to rely on this clause if you are faced with an incapacity situation.

return to work date, then it is likely that it would be considered unreasonable to terminate the employee’s employment. However, if the employee has been away with a severe back injury and his/her doctors are unable to indicate a return-to-work date, then it may be reasonable to consider possible termination due to incapacity. •

THE NATURE OF THE MEDICAL CONDITION OR INJURY including how long it has already continued and the prospects of the employee recovering from it and returning to work. For example, if the employee has only been away from work for a few weeks due to a minor injury like a sprained wrist for example and his/her doctor has indicated a

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THE NATURE OF EMPLOYMENT AND WHETHER THE EMPLOYEE IS IN A KEY OR SENIOR POSITION WITHIN THE BUSINESS. If the employee’s role is key to the business, for example, if he/she is the Head Chef, and you are able to show that the absence of the employee from their role would have a significant detrimental effect on the business, it is more likely that considering termination on the grounds of incapacity would be considered reasonable. You must consider factors such as how crucial it is to the success of the business that the role continues to be filled and how difficult it would be to find a temporary replacement for the role. In this context, the size of your business and the pressures faced by you as an employer will also be relevant. THE THYMES MAY 2016

•

HOW LONG THE EMPLOYEE’S EMPLOYMENT WAS LIKELY TO LAST IN THE ABSENCE OF SICKNESS OR INJURY. You should consider the likelihood of the employee being employed longterm were it not for the incapacity. For example, if the employee is employed on a fixed-term basis, then it will likely be more reasonable to consider termination at an earlier stage than with a permanent employee.

•

LENGTH OF EMPLOYMENT TO DATE. Typically “long-standing” employees should be given longer to recover.

•

CAUSE OF THE INCAPACITY. This is an important consideration. If the employee’s illness or injury has in some way been caused by the company (for example, an accident due to inadequate health and safety precautions being taken), it may difficult to justify moving away from your initial obligation as an employer to support and rehabilitate the employee.

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WHAT IS THE FIRST STEP? If you are dealing with an incapacity situation, the first step you should take should be to meet with the employee informally to discuss the employee’s injury or illness and their likely return to work date. If it appears that the employee may be away from work for some time and the business will struggle in the employee’s absence, this is something that you will need to communicate with the employee. The next step will be to begin a formal process whereby you would invite the employee to a formal meeting to discuss their illness or injury and likely prognosis, how the employee’s absence is impacting the business and the possibility that the employee’s employment may be terminated due to incapacity. The Restaurant Association Helpline can help you draft a letter like this. You must be aware that terminating due to medical incapacity is not a simple process and there may be a need for several meetings before any final decisions are made regarding the employee’s employment.

MUST-DOS – procedural fairness and common errors When dealing with an incapacity situation you must ensure that you do the following: • • • • • • •

You must give the employee adequate notice of the possibility of dismissal and you must not provide any false reassurance regarding the employee’s job The employee must be aware of their right to be represented during the process There must be adequate notice of the possibility of dismissal You must make a fair and adequate enquiry including seeking information about the employee’s illness or injury, requesting medical reports and so on You must make the employee aware of the information that you hold about the situation You must keep the lines of communication with the employee open and consult with the employee It is important to be aware that the Courts are likely to scrutinise closely any decision to dismiss an employee on the grounds of medical incapacity. We recommend calling the Helpline if you are dealing with a situation like this.

NEED HELP? Call us on 0800 737 827

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HOW SERIOUS IS IT? what constitutes serious misconduct?

One of the questions that our Helpline regularly receives when an employer is faced with a misconduct situation with one of their employees, is how do they decide if it is misconduct, or serious misconduct. Minor misconduct offences are typically dealt with at a lower level. They only become a formal disciplinary matter if the problem keeps happening. Serious misconduct however generally goes straight to a disciplinary process and the outcome could be as serious as dismissal.

isconduct is defined as any form of wrongdoing that is of a more minor nature. Usually it will involve deliberate wrongdoing, but not always. Examples include (but are not limited to): lateness, being careless or negligent, using offensive language to others, failure to follow reasonable instruction, the breach of an employer’s internet use or social media policy and less serious breaches of health and safety. Serious misconduct involves offences that are very serious in nature. It consists of situations where an employee’s behaviour is such that you feel threatened, unsafe or the act results in a major loss of trust or confidence in the person. Common examples include (but are not limited to): •

Dishonesty of any kind, including falsification of time sheets or any other document;

•

Unauthorised possession of property belonging to the establishment, customers or other staff (theft);

•

Possessing, consuming, using or being under the influence of alcohol, non prescribed, or illegal drugs while on or before duty;

•

Insubordination, threatening or abusive behaviour including fighting (physical assault) and sexual harassment;

•

Failure to safeguard the establishment’s property, including willful damage to property or equipment belonging to the establishment, customers or other staff members (health & safety breaches);

•

Serious breaches of Health and Safety rules;

•

Failure to comply with the business’ Code of Conduct and Policy;

•

Any other behaviour which is considered as serious as any of the above.

In the past, employment agreements would commonly list conduct that amounts to “serious misconduct”, however this is less common today, although examples may be listed in a business’ house rules.

The problem with listing examples of misconduct, and serious misconduct, is that the list is never finite. In addition, if an employee engages in misconduct that is listed, that doesn’t necessarily mean that serious misconduct has automatically occurred. You must take into consideration the actual nature of the offence, the surrounding circumstances and the employee’s side of the story before deciding whether serious misconduct has occurred. When this is done, it is possible that what looked like serious misconduct may not be so serious after all, remembering that an offence can only be deemed to be serious misconduct if it is so serious that it undermines the trust and confidence you have in the employee. Remember also that even if you do deem that serious misconduct has occurred at the end of the disciplinary process, the result may not result in dismissal. Often employers go direct from a finding of serious misconduct to dismissal, however one does not necessarily follow the other and a less serious sanction may result. Check out the article “Can you instantly dismiss someone for serious misconduct?” on the following page for more information.

NEED HELP? call us on 0800 737 827

THE THYMES MAY 2016

HOW IMMEDIATELY? CAN YOU INSTANTLY DISMISS FOR SERIOUS MISCONDUCT? T

he short answer is yes, but the process is never ‘short' when it comes to dismissal, even if it is for serious misconduct. As we've outlined on the previous page, some misconduct is so serious that it may warrant immediate dismissal. Whatever the behaviour, you need to follow a full, investigative process before you dismiss someone. If your investigation finds that your employee’s actions amount to serious misconduct — that you no longer have the trust or confidence that they can do the job — you can terminate their employment without notice.

SUSPENSION Generally, you can’t suspend an employee unless there’s a suspension clause in the employment agreement. In very serious cases, you may be able to suspend someone while you investigate the misconduct, e.g. to protect your accounts from possible interference after an alleged theft, or to protect the victim in the case of an alleged assault. Before suspending them, you must discuss the proposed suspension, and the reasons for it, with the employee and consider their comments with an open mind.

•

BEFORE YOU DISMISS AN EMPLOYEE When you're considering dismissing someone, you need to be sure it's the only acceptable option. When you're making your decision, consider things like: whether there are any alternatives to dismissal, e.g. a final written warning. Consider: • • • • •

if there are any mitigating factors. were the company rules clear? did you contribute to the issue in any way? have you warned them over this or a similar issue before? How long ago? how long have they worked for you.

If you’re at all unsure on how to act, think whether a reasonable employer would consider dismissal as an option due to the seriousness of the misconduct.

DISMISSING AN EMPLOYEE — THE STEP-BY-STEP PROCESS You can only consider dismissal if: •

•

your employee’s performance has not improved despite repeated attempts with a performance management plan, and you have warned them that dismissal was a potential outcome, you’ve formally warned your employee about misconduct, but their behaviour hasn’t improved and you have now lost trust and confidence that the employee can continue in the role,

you believe the employee’s single act of misconduct is so serious that you have lost the trust and confidence in them to do the job.

Step 1 ~ INVESTIGATE THE MATTER If an employee has engaged in serious misconduct, you may need to investigate and gather witness statements regarding what has occurred. You should get written statements from witnesses, with details like: • • •

the date of the incident what time it happened a description of the alleged behaviour.

Tell the witnesses that you'll be disclosing their allegation to the employee you're investigating. If you witnessed it yourself, document your own statement of the event, and get statements from other witnesses if possible. If the employee has engaged in previous misconduct, or has been through a performance management plan, gather the previous warnings on their file. Refer to these warnings in Step 3.

Step 2 ~ CHECK DOCUMENTATION Check relevant company policies and your employee's employment agreement for clauses outlining what is considered to be serious misconduct, so that if the allegations are proved, you can confirm, that they breached your rules.

www.restaurantnz.co.nz

THE THYMES MAY 2016

Step 3 ~ PROVIDE WRITTEN FINDINGS Set out the details in a letter. The letter should include: • • • • •

details of the allegations (including any witness statements) details of any previous misconduct (include any written warnings, final written warnings, the reasons they were given and the date) excerpts of the relevant clauses in the employment agreement or company policies that may have been breached if the allegations are made out a date on which you want to meet with the employee to discuss the allegations (let them know they can bring a support person or representation) the consequences of what may happen if the allegations are upheld (specifically, that you’re considering dismissal).

Step 4 ~ MEET WITH THE EMPLOYEE Meet with your employee on the date stated in your letter. You can both have a support person or representative there, if you want to. Discuss: • • •

the reason for the meeting the allegations against the employee the possible consequences if the allegations are confirmed.

Give your employee the chance to tell their side of the story.

At the end of the meeting, let them know how long you'll take to consider the situation (normally a day or two), and when you'll inform them of the outcome.

Step 5 ~ MAKE YOUR DECISION AND GIVE WRITTEN NOTICE Consider all the evidence and decide what the outcome will be. You may decide: • •

that a final warning is an acceptable consequence to dismiss the employee.

When deciding how to deal with the behaviour, consider what an objective, reasonable employer would do in your situation. If you decide dismissal is appropriate, it’s good practice to give the employee another chance to respond in person to your decision. Detail your findings in a letter to your employee, stating: • • •

which clauses or policies have been breached why you decided on this outcome the required notice period, and their last day of employment with you.

For cases of serious misconduct where you have lost the trust and confidence in them to do their job, you may be able to dismiss them without allowing them to work out the notice period — this is called summary dismissal (otherwise referred to as "instant dismissal").

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THE THYMES MAY 2016

"I WANT TO LEAVE NOW" mY EMPLOYEE is resigning but

doesn't want to work out

their notice. do I have to pay? S

ometimes when an employee resigns from a business, they ask to leave immediately, or request to work out only part of the notice period dictated in their employment agreement. There will sometimes be pressure for them to start at their new job as soon as possible, particularly with more senior employees who may have a longer notice period, but there could be a variety of reasons for the request. If an employee resigns they are obligated to provide at least the period of notice required in their employment agreement, so it is worth double checking at this point to see what their notice period is. If the employee gives the required notice, and works this notice out, the employer must pay the employee to the end of the notice period. The employment relationship continues until that date. However, if an employee leaves work without giving notice, the employer is not required to pay for time beyond the employee's last actual working day. The employer must not deduct pay in lieu of notice from any amount owed to the employee unless the employee agrees in writing or the employment agreement specifically allows it (see Alison Maelzer's article on deductions in this issue of The Thymes, for more on this). By mutual agreement you may agree to the employeeâ&#x20AC;&#x2122;s request for them not to work out all (or part of) their notice. This agreement must be recorded in writing and clearly

state that the employee forfeits his or her wages or salary for the notice period not worked. Their employment ends at that agreed date at which point their final pay is calculated and they are paid out for any unused annual leave and days in lieu. An employee may also request to take leave during their notice period, thus shortening the working notice period. This would again need to be approved by the employer, so it can be declined if there are reasonable business reasons for not allowing the leave. It is important to note that the scenario we are talking about is when an employee requests not to work out their notice period. An employer must never pressure an employee to leave their employment earlier than they intended, if they provide you with the required notice then you are required to allow this. However, if your employment agreement includes an appropriate clause (as the Restaurant Association employment template does) you may be able to pay them in lieu of notice meaning they will not be required to work out the notice period, but you will still be obligated to pay them for the full notice period and their employment still officially ends on the date that their notice period ends. Having an employee who does not want to be in your business can also be detrimental to the staff moral and be potentially damaging to your customer service. In these cases a change of duties can be appropriate.

employment matters

THE THYMES MAY 2016

MY EMPLOYEE IS ON

THEIR 90 DAY TRIAL BUT IT'S NOT WORKING OUT.

CAN I JUST ASK THEM TO LEAVE? E

mployers can hire new employees on a trial period of 90 days or less and this has become a standard inclusion in employment agreements for new employees. In the event that the employee is dismissed during the trial period the employee is unable to take a personal grievance for unjustified dismissal (they may still take a personal grievance on other grounds) – but any dismissal is not quite as straightforward as simply sending them their marching orders. It is true that when dismissing an employee under a trial period, there is no requirement for a full process or substantial reasoning. However, because of this, the Employment Court takes a very strict interpretation of the law. It is the Court's view that the trade-off for employers, who gain significant advantage through the removal of the employee’s right to challenge justification of the dismissal, is that the law will be interpreted strictly by them. Many of the cases heard by the Court have resulted in penalty for the employer due to a technical slip up made by them. So if any part of the trial period dismissal is incorrect the employee may be able to bring a personal grievance against the employer, for which the consequences can be huge. One of the key points to note here is that if the trial period is rendered invalid for any reason, there is no protection for the employer and the result would likely be an unjustified dismissal with lost wages and compensation being payable to the employee. Some of the key factors to consider, to ensure your 90 day trial is in the first place binding are: • • • • •

You cannot put someone on a 90 day trial if they have previously worked for you (even as a casual). The fact that there will be a 90 day trial period must be discussed with a prospective employee and outlined in the offer of employment. A trial period clause must also be in the written employment agreement (by using the Restaurant Association agreement template you are covered). The employment agreement must be signed before the employee commences work. You must not treat employees on a trial period any differently to any of your other employees (note that the employee can't bring a grievance for unjustified dismissal, but can still bring other types of grievances against the employer, for example unjustified disadvantage (the most common), discrimination, sexual harassment, etc).

•

If you do decide to action a dismissal through the 90 day trial period provision, the dismissal must be with notice (and not payment in lieu of notice, unless it was requested and mutually agreed upon between the employer and employee).

TERMINATING UNDER THE 90 DAY TRIAL PERIOD If you are considering dismissing an employee during their trial period you do not have to follow any of the usual procedural fairness requirements or need to say why you are terminating, however, we recommend that the following steps should be taken:

Before dismissing an employee, check again the following:

www.restaurantnz.co.nz

• That the employee has a trial period provision in the employment agreement. • That before the employee commenced employment and before the employee started work that the employee: - was made aware of the trial period provision in any offer of employment and contained in their employment agreement; - received a copy of their employment agreement containing the written trial period provision;

THE THYMES MAY 2016

- had the opportunity to take advice on the employment agreement; and - signed the employment agreement. If the above requirements are confirmed, and you are therefore confident that your 90 day trial period is binding, we advise in the first instance to raise the issues informally with and give the employee an opportunity to improve in the areas of concern. A dismissal under the 90 day trial period should not come totally ‘out of the blue’. If you have exhausted this approach and the issues have not been resolved, you could proceed to take steps to terminate the employment. The good faith obligations require both employers and employees to be pro-active and constructive in all aspects of the employment relationship. You are not required to give an employee access to information, or the opportunity to comment on the information, before a decision to dismiss is made, however, to build a solid case and as a measure of good faith, we recommend following a process when terminating under the 90 day trial period. This will also protect you somewhat if your trial period process is found to be flawed for some reason. After you have made it known to the employee that there are areas of concern, you have given them an opportunity and the tools to improve and you see no improvement, invite the employee to a meeting in writing. The letter should state that they can bring a support person or representative to the meeting and explain that the purpose of the meeting is to discuss the possibility of their employment ending under the terms of the trial period. At the meeting allow the employee to provide you with feedback on your proposal to dismiss them under the 90 day trial provisions. Consider this feedback before making a decision to terminate their employment – this could mean an adjournment of the meeting for you to consider and make your final decision, or may require you to schedule another meeting altogether.

BUSINESS SUPPORT for Restaurant Association members

If you do decide to terminate the employment you must ensure the employee is given notice of termination of employment before the end of the trial period (the notice can expire after the trial period so long as notice is given within it). You must also ensure that notice is given. The applicable notice period is that contained in the trial period provision in the employee’s employment agreement. If there is no notice period specified in the trial period provision, then the notice contained in the termination or notice clause of the employment agreement is to be applied. Ensure the employee works out their notice period - do not pay notice in lieu for a trial period termination unless mutually agreed. While you are not required to provide reasons for the dismissal in writing, as an employer acting in good faith, if the employee requests it, you should verbally give the employee a reason as to why they are being dismissed during their trial period. The reason given must not be misleading or deceptive. It’s natural for people to seek to understand reasons for such a significant setback and it is our view that the employee shouldn’t be deprived of the ability to learn from a failed trial period.

A NOTE ABOUT PROBATIONARY PERIODS A probationary period is not the same as a 90 day trial period and should only be used in limited circumstances, for example when you have an existing employee taking on a new role or when you are rehiring an ex-employee after a gap in service, or putting a casual employee into permanent employment in a different position. In any of these situations a 90 day trial period is not available to you, and a probationary period could be suitable. Contact the Restaurant Association Helpline on 0800 737 827 for more information on 90 day trial periods and probationary periods.

MENTOR ME!

WHEN WRESTLING WITH A PROBLEM, HAVE YOU EVER WISHED YOU COULD SEEK THE ADVICE OF AN INDUSTRY EXPERT WHO'S ‘BEEN THERE, DONE THAT’? That’s where the Restaurant Association can assist you. Offering expert advice and guidance is one of the many ways the Restaurant Association supports our members. With year’s of experience Tony Adcock is currently working with us to provide mentoring and business guidance for Restaurant Association members. Here's what one of our members has to say:

"Thank you for your concise management plan for our operation. It all rung very true and I am feeling like we have turned a corner with your suggestions. Your report has been a significant help in our journey!" NEED HELP? Call us on 0800 737 827

If you haven’t used the Helpline (0800 737 827) before please feel free to call up for a business check-up. AVAILABLE TO HELP WITH EVERYTHING BUSINESS! • • • • • • • •

Food Costing Business Start up Lease Agreements General Hospitality business advice Business Check-up – Tony will talk you through his check list to ensure that your business is running effectively and efficiently Selling your business Sales and Marketing Budgeting advice

THE THYMES MAY 2016

E R O M

EMPLOYMENT MATTERS

GIVING WITH ONE HAND TAKING AWAY WITH THE OTHER?

Changes to the law on deductions from an employee’s pay From time to time, an employer wants to make a deduction from an employee’s wages. This can be when an employee has taken annual leave in advance, not returned equipment, run up a bar tab, or not turned up for a shift which occurs after payday. Of course, an employer could ask the employee to pay back any money owed, but it would be so much more convenient for the employer to simply deduct it from the employee’s pay. So when can deductions (lawfully!) be made? BY ALISON MAELZER, SPECIAL COUNSEL, HESKETH HENRY

here have been a few changes to the Wages Protection Act 1983 (WPA). These changes mean that employers cannot make unreasonable deductions, and if relying on a general consent, must consult with the employee first.

WAGES PROTECTION ACT 1983 (WPA) Amendments to the WPA came into force on 1 April 2016. There are two key changes. The first is that the amendment confirms that “an employer may, for a lawful purpose, make deductions from wages payable to a worker – (a) with the written consent of the worker (including consent in a general deductions clause in the worker’s employment agreement); or (b) on the written request of the worker”. So the good news for employers is that the general consent to deductions that most employers have in the employment agreement will be effective. This clears up any confusion caused by a couple of contradictory cases in the past. However, from 1 April, employers “must not make a specific deduction in accordance with a general deductions clause in a worker’s employment agreement without first consulting the worker”. In other words, before making a deduction in reliance on the general clause in the employment agreement, employers need to explain the deduction it is proposing to make, seek the employee’s feedback, consider it, and then make a decision. Note that the amendments require consultation about the specific deduction – as opposed to fresh agreement. So an employee may provide feedback to the effect that they do not want the deduction to be made. So long as the employer genuinely considers the employee’s view, and so long as the general deductions clause is present in the employee’s agreement, and the employee has signed the employment agreement, the employer can still decide to make the deduction.

The other key change is a provision stating that an employer cannot make an “unreasonable” deduction. Unfortunately, the WPA doesn’t specify what an “unreasonable” deduction is. However, the talk in the period leading up to the amendments was all about employers making deductions for losses to the business caused by third parties. The example used in the media was petrol stations making deductions from employee’s wages when a member of the public put petrol in their car and drove off without paying. In our view, it is very likely that such a deduction would be “unreasonable” under the amended WPA, and therefore not allowed. Similarly, our expectation is that deductions for ‘dine and dash’ situations, or, most likely, breakages that were not clearly caused by negligence, would also be unreasonable.

SUMMARY - WHAT YOU NEED TO DO If relying on a general consent to deductions clause in an employment agreement the employer needs to: • •

ensure that any proposed deduction is lawful and reasonable; and consult with an employee before making any deductions from his or her wages, including final pay and holiday pay.

If you have any questions about deductions, or want to run a particular scenario by us, please do not hesitate to contact us. ABOUT THE AUTHOR

Alison Maelzer provides advice in all aspects of employment law (both contentious and non-contentious), with a particular interest in health and safety, disciplinary and performance issues. E: alison.maelzer@heskethhenry.co.nz T: + 64 9 375 7628

employment matters

THE THYMES MAY 2016

AGREEING ON

HOURS & AVAILABILITY Over the past weeks employers have been struggling to meet the new obligations of the employment legislation which came into force just over a month ago. While the Restaurant Association strongly supports the Government’s aim to eliminate unfair employment practices, the Act has come into force in haste and hasn’t been particularly easy to interpret. We can't imagine it will be long before the Act is tested through the Employment Court.

ne of the hottest topics for the industry is around agreed hours of work and availability – the part of the legislation that aims to shut down so called “zero hour contracts”. While your employment agreements do not have to include any agreed hours of work, if any hours of work have been agreed, they need to be recorded in the employment agreement. If no hours of work are agreed, you still need to provide an indication of the arrangements relating to the times the employee is to work. Remember though that you won’t be able to require an employee to work outside of their guaranteed hours if they don’t want to. So, if you and your employee have agreed hours of work, outline them in their employment agreement, including any or all of the following: a) the number of guaranteed hours of work (e.g. the employee will work a minimum of 20 hours per week); b) the days of the week on which work is to be performed (e.g. the employee will be required to work on Saturday and Sunday); c) the start and finish times of work (e.g. the employee will be required to start at 10am for the lunch service); or d) any flexibility in the matters referred to in paragraph (b) or (c) (e.g. the employee will be required to work on Saturday or Sunday, and start at 10am for the lunch service or 5pm for the dinner service). So far, so confusing… As the agreed hours form part of the employment agreement they can only be varied by mutual agreement between both the employer and the employee. So, you should provide as much detail as possible in the employment agreement, but still allow for flexibility and fluctuating business needs. For example, if you guarantee a minimum of 30 hours per week, you will be contractually bound to pay the employee for 30 hours a week, even if they work fewer than 30 hours because you are unable to provide the work.

Think about whether the employee will be required to work on any particular day or days of the week (i.e Monday to Sunday) and, importantly for our industry, whether the employee’s hours each week will be set out in a roster. In your employee’s employment agreement you may have, as an example: • •

Agreed hours: A minimum of 20 hours per week to be worked on Monday, Tuesday, Wednesday and Sunday. Rostered hours of work: The business’ trading hours are usually 6am to 3pm Monday to Sunday. Your rostered hours of work each week will be displayed on a weekly roster. It is your responsibility to find out in advance the contents of the roster. You agree to work on the days and times rostered.

Remember, you will need to get the employees agreement if you need them to work more than their agreed hours at any time.

NEED YOUR EMPLOYEES TO BE “AVAILABLE” TO WORK IF YOU NEED THEM? An availability provision means a provision in an employment agreement where the employee’s performance of work is conditional on the employer

NEED HELP? Call us on 0800 737 827

THE THYMES MAY 2016

making work available to the employee; and the employee is required to be available to accept any work that the employer makes available. An availability provision can be included in your employment agreement but only if you have genuine reasons for including the provision and the number of hours of work specified in that provision. You must also provide for the payment of reasonable compensation to the employee for making themselves available to work. Another point to note with regards to availability provisions is that they may only: •

•

be included in an employment agreement that specifies agreed hours of work and that includes guaranteed hours of work among those agreed hours; and relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.

In considering whether there are genuine reasons for including an availability provision, you need to consider a number of relevant matters which are outlined in the new legislation. A genuine reason may be because you cater a series of events each year and during that period you may need employees to work extra hours in addition to their agreed or rostered hours. Another example is that you may need employees to be on stand by and available to work on Saturday night if required, as that is the busiest night for the business and is also a night that employees who are rostered on often call in sick or do not turn up for work. However, if a business has a ‘pool’ of employees who may be called on to work additional hours by agreement – i.e. an employee may accept or decline the extra hours, it may not be necessary to have an availability provision that requires a particular employee to be on call, waiting for work. If an employee makes him or herself available to work if required, you have to compensate the employee for being ‘on-call’. The compensation amount has to be reasonable. For example, it may not be reasonable to guarantee an employee only 1 hour of work per week, but require him or her to be available for an additional 39 hours per week if required, and only pay them $20 compensation for being available or ‘on-call’ for that week. This is exactly the type of situation that the new legislation aims to eliminate. Employment law is a minefield so the Restaurant Association is here to help members to adhere to best practice in relation to staff management. Call us on 0800-737-827 for advice.

WE'RE HERE TO HELP!

REMEMBER, If you need urgent employment help, we are available for advice and assistance on 0800 737 827 or outside general office hours on 027 413 3880.

HELPME! Legal enquiries

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Immigration enquiries Policies and procedures

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Don’t suck lemons, talk to us! • • • • • • •

24/7 Helpdesk Legal advice Employment Law Lease Agreements and Contracts Liquor licensing Templates and Guidelines Confidential support and advice

Offering expert business guidance and the tools and resources to help your business are some of the many ways the Restaurant Association supports our members. If you haven’t used these services before please feel free to call up on 0800 737 827 for a chat.

NEED HELP? Call us on 0800 737 827 THE THYMES NOVEMBER 2015

WHAT HAPPENS

WHEN YOU NEED TO CANCEL A SHIFT? One of the frequent topics of discussions our Helpline has been having with members as they get up to speed with the new employment legislation is around cancellation of shifts.

t is our current view that if you allocate an employee’s hours and days of work via a roster, and there are different times and days that an employee may be required to work, your employees will probably be working shifts. If your staff do work shifts, their employment agreement now needs to specify a reasonable notice period that will be given before a shift is cancelled and also provide for reasonable compensation to be paid if you are unable to provide them with the specified notice. This period of notice must be determined having regard to a number of factors but as one example, a reasonable period of notice could be 24 hours if you can tell the day before how busy your restaurant will be based on current bookings. Compensation will also need to be determined taking into account factors outlined in the legislation, but some examples of reasonable compensation could be a flat rate of $50, a certain number of hours’ pay, or 50% of what the employee would have worked if the shift had not been cancelled. If you are cancelling just one employee’s shift and not the whole shift (for example, you still need some staff but not all the staff that are rostered on) do not disadvantage or discriminate against an employee. For example, if you always pick on the same employee and cancel his or her shift, without reasonable justification, this could be seen as bullying or could give rise to a disadvantage personal grievance. Please also note that you cannot cancel an employee’s shift if that cancellation would breach the employee’s employment agreement, for example the employee’s agreed hours of work. The Restaurant Association's employment agreement specifically specifies that if an employee volunteers or agrees not to work a shift or to go home early during a shift (for example if business is slow) then you do not need to pay the employee for the hours they do not work or pay any shift cancellation compensation. This has not been tested yet so please use with caution and care. Any influence or pressure by the employer to obtain the employee’s agreement is likely to constitute the

cancellation of a shift and potentially give rise to other claims. Otherwise, if you cancel the shift part way through you’ll have to pay them what they would have earned for working the whole shift. What an employee would have earned for working a shift will most likely be determined by considering all relevant factors including agreed hours, rostered hours, business hours, what time the shift ended for others who worked it and what time that shift normally finishes.

IN SUMMARY: • • •

• •

You can cancel an employee’s shift. If you give the shift cancellation notice (or more time) then you do not have to pay the employee what he or she would have earned for working the shift. If you cancel a shift but you give less than the shift cancellation notice then you have to pay the employee the shift cancellation compensation but you do not have to pay the employee what he or she would have earned for working the shift. If you cancel the shift at the start of the shift you have to pay the employee what he or she would have earned for working that shift. Unless you are using the Restaurant Association agreement which has a specifc clause, if you cancel the shift during the shift you have to pay the employee what he or she would have earned for working the remainder of the shift (and the hours they actually worked of the shift as well).

NEED HELP? Call us on 0800 737 827

THE THYMES MAY 2016

EVALUATION PERIOD best practice While the Restaurant Association firmly believes there is a place for short term "pre-employment" evaluation periods in the hospitality industry, whereby someone completes a practical stage of the interview process, we've been alerted to some incidences lately where these evaluation periods have extended into durations that we would consider excessive.

n our opinion if these evaluation periods extend into several shifts, even a week, you are risking an argument that the prospective employee is prospective no longer, ie their employment has begun. If this is the case you may encounter some serious issues, not least of all that you will not be able to rely on any 90 day trial period provisions.

NEW

EMPLOYMENT AGREEMENTS

NOW AVAILABLE! Changes to health and safety and employment standards legislation have bought a raft of new requirements for your employment agreements.

As a result, we’ve updated our Restaurant Association employment agreement templates and these are now available free of charge to members.

Here are some key points to note:

The full suite of updated documents available are:

•

Ensure that the prospective employee understands that the evaluation period is voluntary and unpaid.

•

PERMANENT EMPLOYMENT AGREEMENT (for full and part-time wage earners)

•

Get the employee to sign an evaluation period agreement form giving their consent to the voluntary test as part of the recruitment process.

•

Ensure no payment or reward is provided. If you make some payment or provide some reward for participating in the evaluation you will be unlikely to argue the voluntary nature of the test.

GUIDELINES FOR INTERPRETING THE EMPLOYMENT AGREEMENT (a clause by clause explanation of the permanent employment agreement)

•

MANAGERS / SALARY WORKERS EMPLOYMENT AGREEMENT

•

Ensure the duration of the evaluation period does not extend past 3-4 hours.

•

FIXED TERM EMPLOYMENT AGREEMENT

•

CASUAL EMPLOYMENT AGREEMENT

•

A legitimate voluntary pre-employment test / evaluation period does not negate the trial period provision, provided the employee is given a reasonable opportunity to take advice and signs the employment agreement before they start work.

•

APPLICATION FOR EMPLOYMENT FORM

•

If the employee is not measuring up consult with the Restaurant Association as to the correct process to follow in accordance with the 90 day trial period provisions.

If you do decide to conduct an evaluation period / pre-employment test with prospective employees to check their suitability for a role contact the Restaurant Association for a copy of our “Voluntary Evaluation Period" agreement form”. You can also contact the Restaurant Association on 0800 737 827 if you have any questions regarding pre-employment evaluations.

For any new employees you should start using the new agreements straight away, however for existing staff you have until March 2017 to update your employment agreements (or issue a variation to the agreement). We recommend that you make full use of the transition period - we'll remind members closer to March 2017 of their obligations to update existing arrangements. If you would like your FREE copy of any of these documents please let us know (email info@restaurantnz.co.nz or phone 0800 737 827).

ASSETS FROZEN

AFTER NON-PAYMENT OF PENALTIES The Restaurant Association strongly supports the sanctions imposed against a Nelson restaurant which was negligent to the extreme in its obligations to two of it’s employees. In a decision at the end of last year, the Employment Relations Authority ordered the business to pay more than $91,000 for employment law breaches and arrears owed to two chefs employed in the restaurant, and when payment was not made, ordered that the companies assets to the value of the penalty were frozen.

n the Employment Court decision it was found that the employer failed to pay minimum wages, statutory holidays and failed to provide annual leave to it’s two migrant employees. The Ministry of Business, Innovation and Employment’s Labour Inspectorate brought the case before the ERA at the end of last year after receiving a complaint from a member of the public concerned about the treatment of staff and their work conditions. He advised he worked in an establishment close to Taste of Egypt, the business in question, and was concerned by the conditions under which two of the employees appeared to be working. He said he raised his concerns with them and learned they were working in excess of 70 hours a week but were only being paid for 30. After interviewing the employees, along with their employer, it was concluded by the Inspectorate that there were various breaches in respect of statutory obligations regarding payment and record-keeping. Both employees employment ultimately ended in September 2015 following Taste of Egypt's sale of its Nelson operation (it still had another site in Christchurch). The judge agreed with the Labour Inspectorate’s recommendation that Taste of Egypt’s behaviour warranted a significant penalty. It was considered that a strong statement of condemnation for multiple infractions was justified. As a result the following payments were ordered against Taste of Egypt: • • • •

$64,559.12 for arrears of wages and holiday pay. an additional $3,791.03 in interest owing as of the date of the determination. a further $20,000.00 for penalties for breaches of the Employment Relations Act 2000. a further $3,571.56 as a contribution towards MBIE’s costs.

The payments were ordered to be made by December 2015, however the company appealed the decision. In a recent twist to the case, the Ministry of Business, Innovation and Employment's (MBIE) Labour Inspectorate issued a freezing order against the company and its directors when it became aware the company had sold its remaining Christchurch business. It was believed the directors were preparing to leave the country permanently or dissipate their assets. The bank accounts of the company and the directors were frozen along with their assets, to the value of the outstanding debt. (That order has now been lifted.) WHAT CAN WE LEARN FROM THIS? Migrant workers are a particularly vulnerable section of the workforce and are an increasing focus for the Ministry’s enforcement operations. This ruling sends a clear message to employers that failure to comply with the minimum labour standards will not be tolerated.

NEED HELP? Call us on 0800 737 827

THE THYMES MAY 2016

BUSINESS INSIGHTS...

LOCATION, LOCATION

AND LOCATION...??? This mantra is no longer the single most important factor in success for cafes and restaurants.

ith the huge increase in competition, the many different concepts and the variety of target markets there are now many roads to owning a successful food business.

If you are buying or setting up a cafĂŠ featuring fast food, prompt service and good coffee, you need a high profile site with lots of foot traffic and a solid residential area or industrial area in close proximity. For a 5-day business and strong week-end sales then ample parking and extensive housing development is more important. For a destination restaurant featuring a particular food style adequate parking may be a prime consideration and the rental may be more reasonable.

BIG &

The demographics of your target market (age, wealth, ethnicity) will also influence your site selection. Whatever the location, rent, along with the lease, must always be a major factor. Rent as a percentage of sales is much more important than rent per square foot. The rate may be very high in a major shopping centre but is counter-balanced by the foot-traffic, parking provisions, supporting shops, and centre marketing. And your lease should be checked by your professional adviser for any limitations on use, signage, competition, or assignment. Yes, location is important but needs to be right for your style of operation, be at a reasonable rental, and with a secure lease. BY CLYTH MACLEOD

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Licensed. Short hours. ProďŹ table. Price $205,000 plus stock. Antonio Bosu 021 252 2689

... don’t forget to support the businesses that support you & the Restaurant Association STRATEGIC PARTNERS...

MEMBERSHIP BENEFITS

for Restaurant Association members

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EFTPOS New Zealand are committed to ensuring their customers get the best solution at the best price - guaranteed! They are the experts when it comes to hospitality payment solutions. New Zealander’s love to pay by eftpos! With the evolution of eftpos and mobile wallets, we’re fast becoming a cashless society. Consumers are also becoming more aware of the variations between payment solutions and how outdated payment technology impacts their instore experience. The hospitality sector in particular is dependent on customer convenience for creating the best customer service experience. All touch points staff have with customers need to be as streamlined as possible, including the payments process. EFTPOS New Zealand has developed a payments solution tailored specifically for hospitality combining hardware, software and support.

KEY PARTNERS...

EFTPOS New Zealand works with Restaurant Association members as a partner, and offers future proofed technology that meets your specific hospitality industry requirements. As well as offering reliability, Payment Device Security, and up to date technology with contactless transactions, and mobile payments we continually strive to provide solutions that support our customers businesses and make their lives easier. Surcharge and Service Fee is a new solution released at the beginning of 2016. This solution allows you to automatically calculate and add a Surcharge or Service Fee to a transaction on the terminal at the time of payment. Are you thinking about upgrading your payment solution? If you are concerned about the costs involved, a surcharge or service fee solution could be right for your business. The latest payment devices from Verifone make it easy to accept payments. These next generation eftpos terminals feature fully integrated contactless payment capabilities, future-proofing your business against emerging contactless payments technology. Contactless transactions can dramatically reduce wait time for customers and eliminate queues at the till, while linking your eftpos terminal to your Point of Sale ensures superfast, accurate, and convenient transactions for staff and customers.

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EFTPOS New Zealand provides a number of Point of Sale connected payment solutions ensuring that our customers have the best payments fit for their business needs. The software guides staff through the transaction on the POS screen, while the customer enters their details on the integrated PIN pad. *Terms and conditions. 20% off terminal rental offer applies to new EFTPOS NZ customers only signing a 36 month contract. 10% terminal rental discount on 12 month contract option also available.

TAX CHANGES

TO HELP SMALL BUSINESSES The government has recently announced it is to change provisional tax arrangements so that about 100,000 small businesses will have the option to pay as they earn income. The pay as you go option would mean businesses would not have to predict future earnings and instead would be able to work out their tax payments on an ongoing basis throughout the year. That change would apply to businesses with an annual turnover of less than $5 million, and comes into effect on 1 April 2018. The Government has also announced a change to withholding tax which would allow contractors to be able to choose the withholding tax rate to suit their needs. This would come into effect on 1 April 2017. The ongoing 1 percent monthly penalty will also be scrapped from 1 April 2017, although immediate penalties and interest charges for late payments will continue to apply. Prime Minister, John Key said the tax package had been developed to make it easier for smaller businesses to comply with their tax obligations and therefore reduce costs and distractions. "Among other things, businesses tell us that provisional tax is hard to get right and expensive to get wrong. "Perfect accuracy can sometimes be costly in a way that doesn't seem justified, and some penalties are seen as punitive and discourage compliance," he said. Mr Key said small businesses would be cheering from the rooftops because provisional tax was a pain in the neck for them. "In effect what will happen from 1 April 2018, is that people will go off to their software system, like a Xero or an Intuit or whatever, they'll go out there, every two months it will calculate their tax at exactly what they owe, they'll pay it and that'll be the end of the story for them. Here is a summary of the changes:

The elimination or reduction of use-of-money interest to come into effect 1st April, 2018

Use-of-money interest is money paid or received depending on the difference between the amount of provisional tax paid and the actual amount of tax liability the business owed. Currently businesses have to estimate the amount of tax they are likely to pay for the coming year and pay that amount in three installments. A new "pay-as-you-go" option will allow businesses to stop estimating and pay tax as they go throughout the year.

Every two months the new software will calculate taxable income for that period and prompt businesses to pay what they owe, generally at the same time as paying GST. Who will this affect? Small businesses, who turnover less than $5 million. Up to 110,000 small businesses could be eligible.

SME-friendly tax package to come into effect 1st April, 2017

This will affect contractors, allowing them to choose a withholding rate that suits their individual circumstances, instead of the tax rate being fixed.

Late payment penalties to come into effect 1st April, 2017

For new debts after April 1 2017, the 1 percent on-going monthly penalty will no longer exist for income tax, GST and some other penalties. The immediate penalty that applies to late payments, and the 4 percent penalty after a further week, will remain.

NEED HELP? Call us on 0800 737 827

THE THYMES MAY 2016

SAFER TOGETHER MAKING WORKERS PART OF HEALTH & SAFETY One of the keys to success in the restaurant trade is surely having a great team in the kitchen. Everyone has to play their part – from the head chef to the wait staff, the kitchen hand to the dishwasher. They all need to work together to deliver the finished product.

he same is true of good health and safety at work. There are lots of moving parts; identifying and managing risk, co-ordinating with any contractors or goods delivery operators on site, ensuring equipment is properly maintained and people have the skills they need to stay safe. Making sure everyone is participating and doing their bit is vital. That’s why worker engagement and participation is such a focus of the Health and Safety at Work Act, which came into force on 4 April. Under the Act every business is required to engage with their workers on health and safety matters. It doesn’t set in stone what form that engagement must take. That will vary from industry to industry and workplace to workplace. But the law is clear – if it relates to health and safety then the business must make sure that workers’ views are asked for, and taken into account. Not only are workers in the front line if anything goes wrong, but they are often best placed to identify work risks and identify possible solutions. They’re the people using the ovens and gas burners, helping to unload deliveries and stacking the storeroom. They will be the first to know if there’s a problem with any gear or if the delivery vans are posing a risk because of a lack of lighting outside daylight hours. So it makes sense to ask workers for feedback on matters that could affect their health and safety, and all businesses need to have clear, well known ways for workers to participate in improving health and safety on an ongoing basis. That doesn’t have to be complicated – it could be starting each shift with a quick talk about the day ahead and anything out of the ordinary to watch out for and giving everyone a chance to raise any issues or solutions for discussion. Any business can also choose to take advantage of workplace Health and Safety Representatives (HSRs) and Health and Safety Committees (HSCs). HSRs have a formal role under the law, and businesses are required to free up HSRs for up to two days paid leave for training (and to pay reasonable training costs). HSRs provide a clear, well known way for workers to participate in health and safety. They help workers communicate and work with a business to problem solve.

business insights

A fully trained HSR will bring knowledge of the law and of risk management into your business. They will also have the ability to issue Provisional Improvement Notices which formally require a business to address a health and safety concern (but not without first consulting with the business). In practice notices are only likely where there is a clear and immediate risk and are expected to be few and far between. If the business believes there is not an issue it can challenge the notice by contacting WorkSafe New Zealand. But, if the business is doing its job identifying and managing risk, and the HSR is doing their job supporting workers and the business to make health and safety part of the daily routine, then any issues will be dealt with early and constructively. While any business can choose to have HSRs, larger business, with more than 20 workers, must arrange an election to pick a Health and Safety Representative if a worker asks to have one. And if an HSR or five or more workers ask for a Health and Safety Committee then the business must formally consider that request. For smaller businesses not in a high risk industry, responding to a request for HSR or HSC is optional. But even setting aside the law good worker engagement and participation makes good business sense in its own right. Research shows a fully engaged and committed workforce is far more likely to be a highly performing and productive workforce. The trick is to make sure health and safety is integrated into your business at every level. Keeping an eye out for one another, and speaking out if something doesn’t look right, should be part of everyone’s daily routine. If it’s not already then now is the time to take action. Not only will our workers be safer and healthier, our businesses will be one more step on the road to excellence. For more information on worker participation, other aspects of the new law, and a growing range of tools and resources visit the WorkSafe web site at http:// www.business.govt.nz/worksafe/hswa

THE THYMES MAY 2016

MUSIC WORKING WITH

CLASSIC KIWI HOSPITALITY

What makes a happy workplace? Ask Mike from The Cat Lounge and he’ll tell you it’s the people you work with that matter most. And the cats.

n November 2015 Mike left behind a corporate job in the banking sector to open New Zealand’s first cat café. He says the people he worked with were the main reason he stayed in the corporate world for so long. “It was incredibly boring but some of the people there were really lovely” he says. “That's what kept me there for eight years. But there is only so long you can sit in front of a computer screen day-in, day-out doing a job you don’t enjoy!” Mike’s new colleagues, however, are altogether different. They include hospo-queen, busy mum of three and business partner Vicky, as well as furry co-workers Ritchie McClaw, Ron Weasley, Maraetai, Jazz and Smudge. The Cat Lounge concept is simple: create a dream playroom for cats – complete with climbing frames, runs, hidey-holes and cat-bowls overflowing with Friskies cat biscuits – add a top class café serving delicious food and quality coffee (in a hygienically cat-free area), switch on the music and open the doors to the cat-loving public. The cat café was a concept that Mike and Vicki had seen modelled overseas and thought it could be successful here. And they were right. In the first five months The Cat Lounge has seen over 10,000 visitors, has attracted 17,500 likes on Facebook, and at peak times customers have had to book up to three days in advance for some quality cat-time. The café attracts a wide demographic of catlovers - young people, families, tourists and the elderly all flock to spend time with the 17 cats in residence. With such a wide demographic, everything is carefully considered – from the décor to the music they play. “Background music was always part of the plan after reading reviews online about silent, awkward cat cafes

overseas,” says Mike. “We play a good mix of chilled out tunes - relaxing melodic music, chill-step and remixes, nothing too heavy. We even tried "cat music" that we found online, but the cats didn’t seem interested...” The Cat Lounge holds a OneMusic licence, which gives them the permission they need to play music in the café. The licence fee The Cat Lounge pays to OneMusic is in turn paid to music creators as royalties, helping to make sure that more music can be made for cat-lovers world over. The Cat Lounge brings joy into people’s lives – from children having treatment at Starship to elderly who can no longer have cats after moving to rest homes. Mike and Vicky have been extremely pleased with the growth of the café, and Mike has finally found job satisfaction, saying “It’s a very rewarding job getting to make people smile every day, that’s for sure”. The Cat Lounge is located on Archers Road in Glenfield on Auckland’s North Shore. To book in some snuggle time or to meet the cats visit: www.thecatlounge.co.nz To learn more about playing music in your business visit www.onemusicnz.com

NEED HELP? Call us on 0800 737 827

THE THYMES MAY 2016

BIDVEST SHOW DATES 2016

R FOR E T S I G PRERE ITY ENTRY z PRIOR odshows.co.n

Whangarei

Tuesday 26 July

dvestfo i b . w w w

Auckland

Wednesday 27 April

Hamilton

Monday 2 May

Tauranga

Wednesday 4 May

Rotorua

New Plymouth

Tuesday 3 May

Monday 20 June

Hawke’s Bay

Palmerston North

Tuesday 10 May

Tuesday 21 June

Nelson

Thursday 26 May

Wellington

Wednesday 11 May

Greymouth

Christchurch

Wednesday 25 May

Wednesday 17 August

Timaru

Tuesday 16 August

Queenstown

Tuesday 17 May

Dunedin

Thursday 19 May

Invercargill

Wednesday 18 May

Whangarei 09 430 4925

Rotorua 07 345 9104

Wellington 04 237 2700

Timaru 03 688 2123

Auckland 09 573 7101

New Plymouth 06 751 2260

Nelson 03 547 5349

Queenstown 03 450 9039

Hamilton 07 850 1150

Palmerston North 06 354 6164

Greymouth 03 768 6814

Dunedin 03 470 1095

Tauranga 07 543 4016

Hawke’s Bay 06 843 0555

Christchurch 03 384 4300

Invercargill 03 214 9994

www.bidvest.co.nz Bidvest Food Show 2016 A4 Flyer.indd 2

0800 4 BIDVEST (424 383) 10/03/16 3:11 PM

EVENTS

PROGRAMME

PLUS... CHECK OUT THE LATEST PROFESSIONAL DEVELOPMENT CALENDAR (MAY & JUNE 2016) ENCLOSED WITH YOUR COPY OF THE THYMES OR ONLINE AT www.restaurantnz.co.nz

WHATâ&#x20AC;&#x2122;S ON 01

-31 Pink Ribbon Breakfast month

-31 Aussie Wine Month

www.pinkribbonbreakfast.co.nz

www.aussiewinemonth.com.au

MAY

MAY - JUNE

Restaurant Association professional development The Business Of Hospitality,

Bidvest Food Show Hawke's Bay 11 - Wellington

Bidvest Food Show Queenstown 18 - Invercargill 19 - Dunedin

-22 The Food Show, Westpac Arena, Wellington

www.restaurantnz.co.nz

www.bidvest.co.nz

www.thefoodshow.co.nz

presented by James O'Connell

-21 NZ Chefs Wellington Salon @ Weltec

-24 NRA Restaurant Show, Chicago, USA

Bluff Oyster Festival, Bluff

Restaurant Association Nelson branch MeetMe

www.nzchefs.org.nz

www.show.restaurant.org

www.bluffoysterfest.co.nz

www.restaurantnz.co.nz

JUNE

-26 Winter F.A.W.C., Hawke's Bay

Bidvest Food Show Greymouth 26 - Nelson

Restaurant Association Christchurch branch MeetMe

www.restaurantnz.co.nz

www.bidvest.co.nz

www.fawc.co.nz

Auckland Lewisham Awards, The Langham, Auckland

www.restaurantnz.co.nz

Queens Birthday (public holiday)

-21 NZ Chefs Northland Regional Salon @ Northtec

Restaurant Association Road Show Queenstown, Emerging Managers, presented by Krishna Botica

www.nzchefs.org.nz

www.restaurantnz.co.nz

www.lewishamawards.co.nz

Restaurant Association professional development Managing Gen Y & Z, presented by Nicola Richards

Restaurant Association Manawatu branch MeetMe

-19 NZ Chefs Auckland Regional Salon @ AUT

www.restaurantnz.co.nz

www.nzchefs.org.nz

Restaurant Association professional development Health & Safety in Hospitality

Restaurant Association Bay of Plenty branch MeetMe

-3 July Queenstown Winter Festival

www.restaurantnz.co.nz

www.winterfestival.co.nz

events ~ international and national

12 20

Restaurant Association Wellington branch MeetMe

Restaurant Association professional development Managing & Motivating Your Kitchen Team, Chefs Panel

Bidvest Food Show New Plymouth 21 - Palmerston North

www.restaurantnz.co.nz

www.bidvest.co.nz

-28 Barista Smackdown, ASB Showgrounds, Auckland

-24 NRA Restaurant Show, Chicago, USA

www.show.restaurant.org

THE THYMES MAY 2016

RESTAURANT ASSOCIATION

HALL OF FAME 2016...

WHO SHOULD IT BE?

Awards to celebrATE

EXCELLENCE COMMUNITY SPIRIT

The Restaurant Association will be honouring our industry’s biggest stars at the annual Feast by Famous Chefs dinner in September, as we acknowledge those who have had an exceptional influence on hospitality. Three awards will be presented on the night, which recognise outstanding contributions in three different areas of the industry... The highest recognition is reserved for Hall of Fame recipients, an award which recognises individuals who have made a significant contribution and given exceptional service to the hospitality industry in the past and continue to do so. Last year's winner, Mike Egan joins past recipients of this prestigious award who include icons of the industry like, Otto Groen, Tony Astle, Judith Tabron, Simon Gault and Tony Adcock. As well as the national recognition the Award bestows upon the recipient, he or she receives a unique greenstone sculpture as a permanent reminder of the industry’s gratitude. In addition, the Innovator Award is awarded to an individual or company who has shown outstanding innovation in the hospitality industry. This award is selected by a panel of industry personnel from a short-list provided by industry nominations. Contenders for this award need to be the best in their field, they must be on the cutting edge and have changed the way our industry looks at things. They must be innovative and be achieving to the highest level. The award may be awarded to an individual, or a company. In 2016 the Restaurant Association, together with sponsor American Express, will again recognise a Restaurant Association member who is involved in doing outstanding things in community service. The Good Neighbour Award honours those ‘paying it forward’ in their communities; those who are actively involved in projects or activities that are making a real difference to their neighbourhood. Each year, one hospitality business or individual will be awarded the Good Neighbour Award and will receive $3,000 to support a charity or community project they are involved in.

2015 Good Neighbour his award from Alison Award recipient, Michael Meredith, receiving Solomon (American Exp ress)

Hospitality businesses demonstrate an unwavering commitment to their communities in good times and bad. Perhaps no other industry has deeper community roots. People turn to our businesses each day for sustenance, support and socialization – and our businesses give back to their communities, improving the quality of life for those they serve. These awards promote hospitality business’ roles as cornerstones of their communities, and highlights their efforts. We want to celebrate the great things our members are doing!

If you would like to nominate a person or business for any of these three awards, contact the Restaurant Association today for more information (p. 09 638 8403 or e. info@restaurantnz.co.nz). Nominations close 15th August.

NEED HELP? Call us on 0800 737 827

THE THYMES MAY 2016

A GOLDEN OPPORTUNITY THIS MAY.

CafĂŠs and restaurants can now join this popular TV advertised campaign and support the New Zealand Breast Cancer Foundation.

BARISTA'S SET TO

FIGHT IT OUT!

The Restaurant Association is welcoming the return of our national event - the high energy, intense competition of the 'Barista Smackdown', sponsored by Mojo Coffee, Meadow Fresh and Vitasoy. This fast-paced tournament style event will put top barista's head to head in knock out heats, over three days of action at the Fine Food New Zealand trade show in June.

dapted from a successful international format, the New Zealand Barista Smackdown is tournament style, with single elimination rounds. Two names are selected at random, with the selected barista's facing each other in a one on one knock out heat. This is a "lay the smackdown on your opponent, win or go home, pour off"! Whoever out-pours the other will be showered down upon with praise, while the loser’s latte will be discarded mercilessly. Too harsh? Too intense? Hey, this is the smackdown. Sponsored by Mojo Coffee, Meadow Fresh and Vitasoy, the winning barista will receive $1000 cash and their registered cafe will also receive a fabulous prize. Spot prizes will also be up for grabs. The event will be held at Fine Food New Zealand, ASB Showgrounds from Sunday 26 - Tuesday 28 June 2016. Registrations are now open so encourage your barista's to go online to www.restaurantnz.co.nz to enter today.

N BE KY BARISTA CA ONLY ONE LUCCKDOWN CHAMPION! CROWNED SMA