Problem solving and help

If problems arise, you and your employee may be able to resolve the problem yourselves using the following steps;

1. Be clear about the facts
   Check your facts and make sure you have not assumed or misunderstood something. This could be as simple as checking your calculations.
2. Talk to your employee
   Discuss the facts so that you clear up any assumptions or misunderstandings. Problems often occur around the initial entitlement to leave and the calculation of average weekly earnings. It is very rare that problems should arise on whether an eligible employee’s position can be held open for them. Remember, the employee has a right to take parental leave – this may be inconvenient, but you cannot suggest that they forego parental leave or resign.
3. Clarify whether you still have a problem, and if so what it is
   Do not delay this step. You may need to refer to your employee’s employment agreement and the Parental Leave and Employment Protection Act 1987.
   For help:
   • Check the Department of Labour’s FAQ Knowledgebase, or phone 0800 20 90 20 during business hours
   • Talk to your employers’ organisation lawyer, or employment relations practitioner.
4. Next steps
   If you are unable to resolve the problem through discussion with your employee you can do some or all of the following things:
   • Contact the Department of Labour on 0800 20 90 20, the staff can provide further information, advice and/or refer you to mediation.
   • You can participate in mediation provided by the Department of Labour or agree with the employee to get your own mediator. If you reach agreement, a Department of Labour mediator can sign the agreed settlement. The settlement will be final and binding.
   • If the dispute relates to the amount of leave or payment, a Labour Inspector can investigate for you. Contact details for Labour Inspectors are available from www.ers.dol.govt.nz or by calling 0800 20 90 20 during business hours.
   • If mediation has failed, you can take the problem to the Employment Relations Authority for a decision (see below). If you are not satisfied with a determination of the Authority, you can go to the Employment Court for a judicial hearing.

If mediation does not resolve the problem, or you are not satisfied with the result of a Labour Inspector’s investigation of the level of payment, you can take a parental leave complaint to the Employment Relations Authority for investigation.

Complaints considered under the Parental Leave and Employment Protection Act 1987 include disputes over whether the employer:

• Wrongly tells an employee they are not entitled to parental leave
• Refuses to keep an employee’s job open without good reason
• Dismisses an employee because the employee is pregnant or assuming the care of a child with a view to adoption, or for reasons connected with the employees or their partner’s parental leave
• Does something to disadvantage an employee’s right to parental leave. For example, refusing to provide a letter in response to an employee’s request for parental leave, or refusing to verify details on the paid parental leave application form.
• Unfairly tells an employee to start maternity leave early for safety reasons or because the employer believes the employee cannot do their work adequately
• Unfairly transfers an employee to another job for safety reasons or because the employer believes the employee cannot do your work adequately.

A complaint must be made before the latest of 26 weeks after the action that is complained about, 26 weeks after the expected date of birth, or eight weeks after the end of the employee’s parental leave.

If you want advice or information about applying to the Authority visit www.ers.dol.govt.nz or call 0800 20 90 20 during business hours.

Discrimination

As well as rights under the Parental Leave and Employment Protection Act 1987, employees are protected against discrimination on the grounds of sex (including pregnancy and childbirth) in employment under the Human Rights Act 1993 and the Employment Relations Act 2000.

To find out more about the procedures that apply under both, visit the Department’s website on www.ers.dol.govt.nz or phone 0800 20 90 20 during business hours, or contact the Human Rights Commission on 0800 4 YOUR RIGHTS (0800 496 877).

Where can I get further help?

The Department of Labour has developed a web-based calculator to help calculate entitlements, and to obtain the forms referred to in this factsheet. It is customised to provide clear advice to birth mothers, their partners, and employers. You can access it on www.ers.dol.govt.nz or phone the Department of Labour on 0800 20 90 20 during business hours.

When complete, the calculator provides a full outline of the employee’s entitlements based on the information you have provided.

You can also get help by contacting:

• Employers’ organisations
• Citizens Advice Bureaux

Many employers need help in dealing with their employees need to balance family and paid work
responsibilities. The EEO Trust, jointly funded by employers and government, has information and suggestions.

Contact the Trust at:
Ellerslie Tower, Level 5, 56 Cawley Street, Ellerslie,
Auckland
P O Box 12 929, Penrose, Auckland 1135
Tel (09) 525 3023
Fax (09) 525 7076
E-mail admin@eeotrust.org.nz
Or visit the website: www.eeotrust.org.nz

This page was last updated on: 16-Feb-2010 and is current.