Employment Lawyer, Wellington

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#2608969 23-Nov-2020 11:09

1101:

BlinkyBill:

So what? What an unhelpful post.

pull your head in mate. You know nothing about his employment . I offered an opinion , rather than what he wanted to hear .
Kicking up a fuss , expecting what may not be the normal in an industry is NOT allways the best advice.
Im many jobs its 100% normal to be expected to work overtime for nothing. Thats the REAL WORLD .
a HR Manual isnt binding if his managers dont really have to follow it .

"My contract do not offer overtime payment"

I know a lot about employment - I employ 100 people. An HR policy IS binding - there is plenty of NZ case law that says so. An employment tribunal hearing will find for the employee if there is a POLICY and the company doesn’t follow it.

This is not about overtime payment - this is about time-off-in-lieu. Those are two completely different things. The OP will be paid for the time-off-in-lieu.

I don’t think it is useful to offer an opinion that is not founded on an understanding of employment law and accepted practice. Or what TOIL actually is. That is why the post is not helpful. I hope that helps you a little bit.

ren1316

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#2609005 23-Nov-2020 12:22

All,

Thanks for the many replies.

I didn't get a chance to login over the weekend.

My situation expanded:

In my previous project over the course of 6 months, I logged additional 292.5 hours which I was supposed to be compensated with TOIL (Time Off In Lieu) at 1:1 as stated in the HR policy document. My contract do not pay for overtime work. I am happy to get TOIL at the rate of 1:1 as per HR policy.

But the project sponsor only offered 73hours TOIL (approx 1:4). I am saying this offer is not fair. I wont had wanted to work those additional hours if 1:4 was the offer before the work started. P.S there were no dispute with the (number of) over hours worked and my performance. In fact I had glowing reviews. The over hours were insisted by the sponsors to complete the project on time (which it did).

I have no motivation to work currently. I don't care if I am "let go". I don't need this job with this employer. I can easily find another if necessary (IT jobs are in demand). I am quite happy to take time off.

Yes, I am in touch with HR. They are trying to work something out. But it had been 3 weeks without another offer.

Looks like I shall get in touch with those employment lawyers in the earlier replies.

Much appreciated.

freitasm

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#2609009 23-Nov-2020 12:29

IANAL.

Some unpaid extra hours are ok. If there's a TOIL policy, follow it. But there's has to be some management - from both employers and employees so that those extra hours don't accumulate like crazy. The outcome is never happy for anyone involved.

Dynamic

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#2609012 23-Nov-2020 12:32

It sounds like a major mis-management of expectations and communication. If your management team was in communication with the project sponsor who wanted it done, and did not specify limits, then you work as needed to get it done, keeping in touch with your management team so they are aware of the extra time being worked. They can't re-write history and impose limits after the fact.

Hitting them with 200 hours with no notice may be considered unreasonable, depending on how often you checked in and reported your hours to your management team. When my team are working overtime, I expect them to keep in touch so there are no surprises for either party and minimal or no bill shock for our client.

Have you spoken with your company's HR team? I agree (as others have said) that lawyers should be a last resort.

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ren1316

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#2609017 23-Nov-2020 12:42

Yes, sponsors and management are of cos aware of my hours as it needed to be approved every week.

I was given a separate code to log my over hours.

Yes, I was just doing what I was directed to do.

Yes, HR is still trying to work something out.

Dynamic

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#2609076 23-Nov-2020 13:10

ren1316:

Yes, sponsors and management are of cos aware of my hours as it needed to be approved every week.

I was given a separate code to log my over hours.

Yes, I was just doing what I was directed to do.

Yes, HR is still trying to work something out.

Awesome. I would encourage you to give HR a 'reasonable period of time' to get this resolved. I would personally define reasonable as 1-2 weeks, but politely enquire as to progress every second or third day.

As best I can see from the information you have supplied, you have done everything right. The company should be expected to follow its own policies. You did the work. You kept the parties up to date on the work you were doing as is reasonable and required. You deserve to be 'paid' for it via TOIL, in my opinion as a small employer.

It's up to the company to pay you, as your relationship is with them. If the sponsor does not pay the company, under normal circumstances that is not your problem.

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MikeAqua

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#2609083 23-Nov-2020 13:31

The company would need an epically good excuse not to follow it's own policy. Keeping going with HR. Be firm but professional and persistent.

Mike

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BlinkyBill

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#2609098 23-Nov-2020 13:50

Thanks for the update. 292 hours of accumulated TOIL is a lot, but as you say you were working on a deadline project with no opportunity to actually take the TOIL within a reasonable timeframe.

You are doing the right thing dealing with this through HR. You may wish to consider cashing out some of the TOIL on a 1:1 basis if your employer doesn’t want you absent for a couple of months.

As the next step I think you should press for HR to come up with a definitive position - three weeks is enough time for them to do this, so this week. It is something that an employment lawyer will press for in the first instance anyway. So request them to come up with a timeline for resolution.

Good luck with this.

frankv

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#2609103 23-Nov-2020 13:56

What the above posts have said... plus

292 hours is 7.3 weeks (plus 4 days holiday pay), which is going to be a big hit on work scheduling. You would probably help your boss and the company if you were prepared to defer at least some of it. But it sounds like you're burnt out, so IMHO it would be smart to insist on getting a good chunk immediately/soon. If your boss is smart, he'll agree.

lxsw20

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#2609138 23-Nov-2020 14:48

If they are not willing to give it all as TOIL due to scheduling etc, ask them to pay it out instead, if that works for you. Don't work for free, your time has value.

ren1316

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#2609153 23-Nov-2020 15:07

I would be happy to take my TOIL within the next year to suit both parties, especially when the boarder open up for travelling/flying. I'd rather not convert my TOIL to money as paying too much tax already.

I have 3 weeks off this coming Xmas/New year shut down.

Yes, burnt out. Not motivated to work at all with this issue hanging over my head.

Been to see/chat/vent shrink few times (at company's expense)

Thank you all for your replies. Much appreciated.

Dynamic

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#2609893 24-Nov-2020 16:08

This just crossed my desk via email.... Not necessarily for the OP, but may be of interest to others who have followed this thread.

"The Early Resolution Service within the Ministry of Business, Innovation and Employment (MBIE) is a free phone-based service for employees and employers providing assistance to resolve a workplace issue early, quickly, and informally, before it becomes too serious or needs a more formal process."

https://www.employment.govt.nz/resolving-problems/steps-to-resolve/early-resolution/

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ren1316

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#2621991 15-Dec-2020 13:33

Updates:

I had verbal comms from HR that the project sponsor had agreed with HR that I should/will be getting my TOIL at 1:1 to be used within the next year.

I was told I should be getting a written comms/letter shortly.

I hope "shortly" means before we close for Xmas/New year break.

PS. Amazingly (and surprised) the project sponsor nominated yours truly for a STARS award for the job well done. Certificate + $200 voucher.

Dynamic

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#2622019 15-Dec-2020 14:48

@ren1316 that is a fantastic result. Great to hear.

I'm pleased that it did not need to go to a lawyer, which might have soured the employment relationship beyond repair.

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Dratsab

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#2622073 15-Dec-2020 15:25

Superb! Fingers crossed the company sorts you out fairly quickly.

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