Don’t Be Pushed Out Of Your Job Due To Your Age

It is no secret in a society that is obsessed with physical appearance, employees fight a battle to stay relevant as they reach middle age. In the workplace, that can result in being passed over for promotions, marginalised, and pushed out to make room for younger employees. Age related assumptions create the perception that older workers are less relevant, while the opposite is often true.

While age discrimination is illegal, in practice it’s difficult to prove. Your employer cannot force you to stop working because of your age. If they do, you could file a personal grievance against them.

In New Zealand, nearly one in three workers is already over 55.

You are protected from age discrimination by the law, and it’s important for you to understand it.

NZ Super and some other pensions start at age 65 but there is no official retirement age in New Zealand. There are a few jobs with exceptions where you may not be able to keep working after a specific age. They include:

  • jobs where being a particular age or in a particular age group is genuinely needed for you to do the job —
    for example, an actor who needs to be a certain age for a role
  • domestic employment in a private household, such as a cleaner or a gardener
  • occupations where the retirement age is written into law — for example, judges and coroners
  • some crew of ships and aircraft employed by foreign-owned companies that are operating in New Zealand
  • your employment contract was signed before April 1992 and that contract specified your retirement age, and you agreed with your employer in writing to confirm or change your retirement age.

If you are being managed out of your position, made redundant or subjected to talks of restructuring, or feel you are being bullied into resigning the burden of proof would be with you. Knowing your rights helps you to stand in power. If you are let go and you suspect your age is a factor, we can help you negotiate a better settlement.

While it may be perfectly okay for colleagues to ask you if you have retirement plans it could also raise a red flag. If you are on the receiving end of snide remarks or ‘digs’ mentioning your age, or suggestions that you should retire start taking notes, who said what and who was there.

So If you find yourself subject to talks of restructure or suddenly under the microscope and you start to worry that this could be a sign that you manager or employer may be looking for ways to terminate your employment it would be a good idea to contact us for some free advise or assistance.

Call us on 0800 669 466 or complete our webform: 

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Sick Leave

Why it’s not such a great idea to pull a sickie

1. Guilt
You’ll spend most of your day worrying if the boss believes you are really sick and thinking of ways to convince everyone at work how sick you were. And, some poor sucker will have to work twice as hard because you’re not there.

2. You’re going to regret that when you spend the rest of the week trying to catch up.

3. Next week you probably are going to genuinely be sick – that’s called karma, and you’re going to have to think twice about having another day off.

Probably not a great idea to pull a sickie when you’re on a 90 day trial either. 

But then..

Sometimes it’s actually quite hard to tell if you are sick or not, so it’s a hard call to make, and then there are those days where you wake up feeling like ####  but as soon as you get up and about you feel great, especially because you’ve scored a day off.  And then there’s mental health days! 

On the other hand don’t be the person who comes to work with a stinking cold and spreads it around to everyone else and acts like they are some kind of saint!

There is no power in the Holidays Act for an Employer to force their Employees to take sick or unpaid leave, however Employers may want to consider alternative options, such as allowing the Employee to work from home or requiring a medical certificate to confirm they are fit to work.

When you’re really sick what do you do?

You need to tell your employer as soon as possible, that you are sick or injured and you want to take sick leave. A phone call is the best way to let your employer know, but your workplace may have its own systems to tell them you are sick.

You might have to prove it

If the employer asks for proof when you are away sick for less than three consecutive days, they should tell you as soon as possible that proof is required and must pay reasonable expenses incurred in getting that proof. They can’t insist that you visit a particular health provider.

If your employer asks for proof of your illness or injury when you are away sick for three or more consecutive days, you’ll have to pay the costs of visiting a doctor to get that proof. For example, if you have been off work for two consecutive days and are still sick on the third day, then your employer can ask you for a medical certificate and you would have pay for the cost of obtaining one.

If you don’t provide proof when it has been requested and don’t have a reasonable excuse, your employer is entitled to not pay you for the leave until you do provide proof.

The Medical Council of New Zealand has given the following guidelines as to what should be contained in the medical certificates:

Date of examination
Time period of treatment
Clinical opinion that outlines activities that are safe for the Employee to undertake and the appropriate restrictions.
Where medical certificates do not contain this information, and Employees consent, the Employer can request for further information to be provided from the medical professional.

What will happen if I get sick and have already used up all of my sick leave entitlement?

If you have to take time off work due to illness but have no sick leave entitlement, talk to your employer about your options. It’s most likely you will have to use some of your annual leave, take unpaid leave, or take sick leave in advance (e.g. if you have not worked there for long enough to have sick leave entitlement).

If you have been on sick leave for a prolonged period of time, or on ACC your employer doesn’t necessarily have to keep your job open for you.  Please get in touch if you are being dismissed due to being unable to work, and we will check your rights.

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Probationary Period

A probationary period is different to a trial period.

A probationary period may be used to trial an employee in a new position within the same company. This gives the employee a chance to prove they have the skills or can learn the skills for the new position. The probation period should be for an agreed length of time.

A probationary employee still has to be paid and receives all the benefits that a permanent employee would get, and the probation period must be set out in the employment agreement, if you have an existing employment it should be updated to include the probationary period.

A probation period can sometimes be longer than 90 days, but only if that is reasonable and agreed to. During the probation period you should be made aware of what is expected to perform the job satisfactorily and you should be monitored and receive feedback.

If there are any problems during the probation period your employer must still follow the correct disciplinary process that is laid out in your employment agreement. If you have been on a probationary period and have been dismissed at the end of it give us a call so we can check that everything has been done fairly and correctly. If the correct procedure has not been followed we can raise a personal grievance for you.

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What to expect when you’re expecting a disciplinary meeting…

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If you have been called to a disciplinary meeting it costs nothing to have an initial conversation with our advocates, we do charge an hourly rate to attend a meeting but if discussions turn to an exit package we can do it on a no win no fee basis. Please get in touch on 0800 no win no fee (0800669466) or complete the contact form below and we’ll talk soon.

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Disciplinary meetings can be unpleasant, but they should be done right…

Our simple guide below will talk you through all the things you should expect to see when going through a process and we have included some handy tips and tricks throughout (should you find yourself at the pointy end of the disciplinary process).

If it’s a “formal” process – what should you expect your employer to do?

1. To kick off the process you should receive an invitation to meeting letter which clearly outlines the following things:

  • What concerns the meeting will be addressing;
  • What supporting “evidence” they have in relation to those concerns (and this should be provided to you);
  • The date, time and location of the meeting;
  • Who else will be attending the meeting;
  • That you can bring a support person / representative to the meeting; and
  • What the potential outcomes of the process might be (eg written warning / termination of employment).

It might also let you know that the organisation has an EAP (Employee Assistance Provider – counsellors etc) and advise that if you want to that you can seek assistance from them in relation to the process.

** If you don’t get a letter or if it doesn’t contain the things outlined above, you can (and should) request this information from your employer. You can refuse to attend a meeting until they have given you all of this information.

*** If you’re bringing a support person / representative to your meeting and they’re not available, you can ask for another date so that your person can attend the meeting. An employer must entertain a “reasonable” delay (but reasonable = a couple of days / up to a week).

**** Sometimes it’s helpful to review your organisation’s disciplinary policy / process document. If your organisation doesn’t have one your organisation should ensure that their process meets natural justice and good faith obligations.

2. During the meeting your employer should do the following:

  • Take minutes / notes of the meeting (you should also take your own notes);
  • Provide you with a copy of the notes once the meeting is concluded;
  • Talk through each of the points raised in the invitation to meeting letter and provide any supporting evidence;
  • Give you an opportunity to provide a response on each of the concerns raised / supporting evidence (and if there’s a lot of information it might be reasonable for you to take it away to consider before providing a response);
    * Not ask you to respond to allegations or concerns which aren’t outlined in the invitation to meeting letter;
    * Follow the process that’s outlined in the organisation’s disciplinary policy / process;
    * Talk you through the potential outcomes of the process and give you an opportunity to respond;
    * Genuinely consider the information that you provide in your response;
    * Take an adjournment prior to making any decision; and
    * Not have any pre-written decision letters which they give to you at the first meeting.

** It’s recommended that either you (or your support person) take notes, as this becomes your record of the conversation. These may become important if there is a dispute that arises around the content of the meeting. If it’s just you, and you want to record the meeting, make sure you ask your employer if they’re ok with a recording of the meeting being made.

*** Be honest! There’s nothing worse than being caught in a lie. If it becomes clear that you may have been dishonest, your employer can reissue the invitation to meeting letter and include an allegation of dishonesty (which is considered by most organisations to constitute serious misconduct and can be the basis for a claim (by your employer) that the inherent trust in the employment relationship is broken – opening the door to the termination of your employment).

**** In some instances (where the issues are minor) it may be appropriate for your employer to provide an outcome after they have taken an adjournment within the same meeting. For more serious matters (or where the organisation is considering a final written warning or termination of employment) it would be expected that they take an overnight adjournment.

***** The outcome that you receive from this process should match one of the potential outcomes indicated on the invitation to meeting letter. If your outcome is different to what was indicated (you get a final written warning but the letter says up to a written warning) you should raise this with your employer immediately.

3. Following the meeting your employer should:

  • Supply you with an outcome letter that outlines the meeting process, the discussions that were had and the things that were considered by the organisation prior to making their decision;
  • Identify what happens next (especially if there’s something in addition – like extra monitoring or reviews) and specify when those things will happen;
  • Keep the process and the outcome confidential (no one who wasn’t involved in the process should know that it was going on) – you need to keep it confidential too; and
  • Ideally they should tell you that the matter is now closed and that everyone moves forward from this point.

What should you do?

  • Be honest!
  • Remember that you want to maintain your employment relationship – this was an organisation you wanted to work for and want to (ideally) keep working for!
  • Be honest (this one’s important!)
  • If you don’t have all the information you need to provide a full response – ask for it!
  • If there’s anything you don’t understand – ask for clarification!
  • If you can, take a support person – when you’re in the middle of a process it can be difficult to think straight and make the best decisions.
  •  There’s nothing wrong in asking for help – talk to a trusted friend or family member.

No Win – No Fee also provides representation services – call 0800 669 466 and our advocates can talk through your issue and work out the right solution for you.

Emma Moss-Employee Advocate

Emma Moss is a WorkLaw Advocate who has spent the last decade working in senior human resource roles.
She is currently undertaking a law degree through the Auckland University of Technology (AUT).

90 Day Trial Period

90 day period rules

Trial Periods are Complicated.  There are very strict rules about how they are used. You still have rights.

Calculate Your Trial Dates

Number of Days:
Start Date:
Last day of Trial:

The 90 day trial period is a period when an employer can dismiss the employee without the employee being able to raise a personal grievance for unjustified dismissal.

If you have been dismissed during your 90 day trial and you want to know if it’s legal or fair give us a call. We will check it for you.

It’s complicated:

The Trial Period is not an automatic right of employers, it must be done correctly:

90 Day Trial Rules

  • New Law from 6 May 2019: Only an employer with 19 or fewer employees (at the beginning of the day on which the employment agreement is entered into) may employ a new employee on a trial period for the first 90 calendar days of their employment. 
  • The worker must be a new employee.
  • There must be a written employment agreement that contains a trial period clause. That clause must state the exact time period and that during the trial the employer can dismiss the employee and the employee can’t bring a personal grievance or other legal proceedings about their dismissal.  (Please note all your other rights as an employee remain and you may still raise a personal grievance on other grounds).
  • The agreement should state an official start date for a 90-day trial period. –
  • The employment agreement must be signed by the worker before they start work. (If the worker starts at 9am and their agreement is signed at 9.05am on the same day, the trial is invalid)
  • The worker must have had time to get independent legal advice on the employment agreement.
  • If required, notice under the trial period must be given within the 90 days.
  • When the trial period finishes, unless the employee has been dismissed they become a permanent member of staff.

Can my employer fire me within 90 days even if I haven’t done anything wrong?

As long as the employer gives you notice of dismissal within the trial period they can dismiss you without consulting with you beforehand and for any reason. You can not bring a personal grievance against the employer in relation to the dismissal.  But, you can bring a personal grievance claim based on other grounds such as discrimination, harassment, or to recover unpaid wages. Aside from the employer’s ability to dismiss you you should not be treated any differently from any other employee.

If the trial period isn’t going well and the employer decides to dismiss the employee, they must give notice to the employee that they will be dismissed.

The notice:

  • must be the amount of notice in the employment agreement. If the employer doesn’t give the employee the right amount of notice then the trial period is invalid and the employee will continue to be employed (or if they were dismissed, they could bring a personal grievance for unjustified dismissal). For example, the employer can’t tell the employee that they are dismissed effective immediately if there is a 1 week notice period in their employment agreement.
  • must be given within the trial period, even if the actual dismissal takes effect after the trial period ends. For example, if the trial period is 8 calendar weeks and the notice period is 1 week, the employer must give notice to the employee before the end of the eighth week, even though the employee won’t leave until the end of their notice period.
  • doesn’t have to have reasons for the employee’s dismissal.

As long as all the 90 day trial rules are followed the employer is not required to give reasons for the dismissal.

Check your employment agreement to confirm there is a trial period clause.

Unless it’s in writing and signed by both employer and employee before the employee starts, the trial period isn’t valid.

If you are an Employee and have been dismissed under the 90 day trial period and you are not sure it’s fair contact us and we will check your rights.

sources: Citizens Advice Bureau, stuff.co.nz, Employment New Zealand, The leading source of information on employment in New Zealand.

Call us on 0800 669 466 or email us using the form below so we can connect you with one of our team to help.

Our Advocates are either qualified legal professionals or human resources experts. We do the same job as employment lawyers, the difference is that we are able to provide our services on a No Win No Fee basis. We strive to be the best Employment Advocates in NZ by holding ourselves to the highest standards possible.

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Paid Breaks

Law changes to rest and meal breaks

 On this page:

Overview

The changes to the rest and meal break provisions balance the importance of these breaks for employees with the practical needs for each workplace. The current strict rules are replaced with a more general right for employees to have a reasonable opportunity to rest, eat, drink and deal with personal matters. The new provisions seek to encourage employers and employees to negotiate, in good faith, rest and meal breaks, without compromising business continuity and flexibility.

The Act says:

  • when employers can make reasonable restrictions on rest and meal breaks
  • that employers can specify when breaks are taken, if employees and employers cannot agree on when and how long breaks should be
  • that an employer is exempt from giving breaks – when employees agree to reasonable compensation or where the employer cannot reasonably give the employee rest and meal breaks
  • that reasonable compensatory measures are to be provided when an employer is exempt from the requirements to provide breaks
  • rest breaks must be paid
  • any other law that requires an employee to take rest and meal breaks takes priority over the rules in the Act.

Employees and employers can’t contract out of the right to rest and meal breaks – an employment agreement that required an employee to take no breaks, and did not provide compensatory measures, would exclude an employee’s entitlements. Therefore that part of the agreement would have no effect. In other words, an employee either gets a break or a compensatory measure; the employer cannot fail to give either.

Entitlements to breaks

An employee is entitled to rest and meal breaks that:

  • give the employee a reasonable chance during their work period to rest, refresh and take care of personal matters
  • are appropriate for the length of the employee’s work period.

There are no specific rules for how long, or when, rest and meal breaks should be. Employers and employees should bargain in good faith over the timing and length of breaks.

Common practice is that rest breaks are 10–15 minutes long and meal breaks are at least 30 minutes long, but this varies across industries and occupations. If an employee is unsure what is appropriate, they can check with their industry association or union on what the general practice in the industry is.

When an agreement is reached, then breaks should be taken in line with that agreement.

Where meal breaks are unpaid, the parties can agree that the meal break will be for a minimum length (eg 30 minutes) and employees can take a longer break (eg up to 1 hour) if they wish. The employee would still need to complete their agreed paid hours of work if they take a longer break than the agreed minimum.

If employers and employees cannot agree on the timing and duration of breaks, then the employer can set reasonable times and lengths for breaks. An employer can arrange breaks so services or production continues, taking into account the operational environment or resources, and employees’ interests.

Good practice for determining what breaks are provided, when and for how long, takes into account:

  • how long the employee’s work period is
  • the nature of the employee’s work
  • any health and safety issues related to the work, for example fatigue
  • the time of day or night that the employee’s work period starts – eg can any meal breaks match normal meal times?
  • the interests of the employee – eg to allow enough time for rest, refreshment and to take care of personal matters
  • the employer’s operational environment or resources – eg does the employer need employees to take their breaks in stages or according to a roster, in order to continue production or services, or do all employees need to take their breaks at the same time?
 

Where there is no agreement between employer and employee

The employer must give an employee a reasonable chance to negotiate the timing and length of the employee’s rest and meal breaks, and try to reach agreement in good faith.

Where the employer and employee cannot reach agreement, the employer may set reasonable times and lengths for breaks so the employer can maintain service or production. What is reasonable will depend on the employee’s interests and the operational environment or resources.

Example – An employer and employee agree to the timing and duration of breaks

Lesley works at a fast food restaurant on a 5-hour shift. She and her employer have agreed that she will have a 30 minute meal break after she has worked 2.5 hours.

Example – An employer has specified the timing and duration of a break

Paul is a machine operator in a factory and he works an 8-hour shift. Paul wanted to forgo his 30 minute lunch break but his employer identified that this may cause fatigue and could become a hazard, and said Paul must take this break. In addition, Paul has two 15 minute rest breaks – one after he has worked 2 hours, and the other after he has worked 6 hours.

By contrast Kate works as a cleaner for 2 hours every afternoon. She does not have any breaks because the duration of her work period is so short that it is appropriate to take no breaks.

When an employer can restrict rest and meal breaks

Employers can only restrict rest and meal breaks when the restrictions are reasonable and either of the following condition is met:

  • The restriction is necessary, considering the nature of the employee’s work – in this case the employer can specify what restrictions apply, OR
  • The restriction is agreed to by the employer and employee, whether in an employment agreement or not.

The law allows restrictions to breaks because sometimes it is reasonable that an employee cannot fully enjoy their breaks without interruption, or may need to partially focus on work during a break. However, a high standard is set for when restrictions are possible. Employers and employees should discuss in good faith whether restrictions are reasonable and necessary.

Restrictions on an entitlement to rest and meal breaks are only permitted when it involves:

  • the employee continuing to be aware of their work duties or (if needed) continuing to do some of their work duties, during the break
  • the employee’s break being interrupted in certain circumstances
  • the employee taking his or her break in the workplace or at a specified place within the workplace.

Restrictions that are reasonable might include:

  • to allow healthcare workers to deal with an emergency
  • for a sole-charge worker to respond to customers
  • where another team member needs urgent help.

Reasonableness will depend on the circumstances of the workplace. For example, it may not be reasonable to require an employee’s break to be interrupted where an employer has failed to roster enough staff on to cover a normal busy period of work.

Example – An employer and employee agree to a restriction on a break

Catherine is the manager of a pre-school centre. She discusses and reaches agreement with the staff that if another staff member needs urgent help with a child, it is reasonable (given the nature of their work) that a break can be interrupted. Staff agree to restricted breaks, so occasionally their breaks can be interrupted.

Example – An employer specifies a restriction on a break

Justin works as a nurse at an aged care facility. When on night duty he is the sole nurse. Justin’s employer has said that he will need to continue to be aware of his work duties, or if needed, continue to do some of his work during his breaks; this can include interrupting his break. For example, he may need to check on a patient if a call button lights up during his break. The restrictions are reasonable and necessary given the nature of the work.

How do the rules on breaks affect employers’ duties under the health and safety laws?

The changes do not affect an employer’s duties under the health and safety laws to control hazards (including an individual’s behaviour) that could cause harm to themselves or anyone else. Where physical or mental fatigue is a hazard, an employer must address that hazard.

Where an employer considers that breaks are a good way to avoid fatigue identified as a hazard, the changes do not stop an employer providing those breaks. Employers must also make sure employees’ health and safety is not undermined by:

  • any restrictions on breaks
  • the timing or duration of breaks
  • compensation instead of breaks taken.

Employers and employees can agree to no rest or meal breaks

An employee and employer can agree to compensation instead of breaks. The law requires employers to compensate employees if no break is given where a break would be appropriate.

 

When an employer is not required to provide breaks

An employer does not have to give rest and meal breaks if breaks cannot reasonably be given, considering the nature of an employee’s work. But the law requires employers to compensate employees if this happens.

What is appropriate compensation?

There is some flexibility about what kind of compensation an employer can give, but it must always be reasonable.

The law also says that giving an employee time off work instead of a break is reasonable if:

  • the employee gets the same amount of time off as they would otherwise have taken as a break
  • the time off is given on the same basis as the break that the employee would have otherwise taken. For example if the break that was not taken wouldn’t have had restrictions, then the compensatory break also cannot have restrictions.

Employers can give other types of compensation, as long as they are reasonable. Compensation is reasonable if it is of a similar value as the break.

Example – An employer and employee agree to compensation instead of a break

Chris is a waiter in a restaurant, he works from 6pm till 10pm. Chris and his employer have agreed he won’t stop for a rest break. Chris’s employer pays him until 10.10pm every night as compensation for their failure to give him a break.

Examples – Compensation instead of a break

Bryce works as a sole-charge nanny doing afterschool care. He works from 3pm to 6pm. To compensate him for not getting a break because of the nature of his work, he leaves work 10 minutes early each night when one of the parents gets home, but is still paid for the full 3 hours’ work.

Jim is a fruit picker on an hourly wage. One afternoon a hailstorm was forecast, so Jim worked through his 10-minute break. As a compensatory measure his employer said Jim could finish 10 minutes earlier and still be paid for that 10 minutes.

Example – Building up time off work to take on one or more occasions

Jo works in a café for 6 hours a day. She has a half-hour meal break during her work period. Although an additional 10 minute rest break would be appropriate for the duration of her work period, Jo does not get a rest break. Instead, Jo and her employer agree she can accumulate 10 minutes of time to take off in lieu for each shift she works. At the end of her 5-day week she leaves 50 minutes earlier, but is paid her normal wage.

Example – Compensation of proportionate value

Paul is a machine operator in a factory and he works an 8-hour shift. Paul earns $25 per hour before tax. Paul’s employer asks Paul to skip his 30-minute lunch break and pick up some parts for the machine instead. Paul’s employer offers to pay for lunch to eat on the way to pick up the parts. The compensation is proportionate if it is worth more than 30 minutes pay ($12.50 in this case).

Employees and employers cannot contract out of the legal right to rest and meal breaks or compensation

Employers and employees are not stopped from agreeing to better entitlements to rest and meal breaks. Good practice would be to record these in an employment agreement or similar.

Employers and employees cannot contract out of the legal right to rest and meal breaks or compensation. Nor can they contract for restrictions on breaks other than those allowed by the Act. Any part of an agreement that tries to do so has no effect.

An employment agreement that required an employee to take no breaks, and did not provide compensatory measures, would exclude an employee’s entitlements. Therefore that part of the agreement would have no effect.

Example – contracting out provision with no effect

John works in a retail shop and he works an 8-hour shift. John’s employer asks him to sign an agreement that he won’t take his 30 minute lunch break, but the agreement does not provide for any compensation. Even if John signs the agreement, that part of the agreement would have no effect.

However, any other law that requires an employee to take rest and meal breaks in a certain industry prevails over the rules in the ER Act.

Two other laws that require employees to take rest and meal breaks:

Land Transport Rule: Work Time and Logbooks 2007 – this Rule says when people covered by the work time requirements in Part 4B of the Land Transport Act 1998 must take rest breaks. The explanatory text for the Rule says, “In general, Part 4B of the Act applies to a driver of a vehicle that requires a Class 2, 3, 4, or 5 licence, or is used in a transport service (other than a rental service), or that is a vehicle used to carry goods for hire or reward”. This includes truck, taxi and tour bus drivers.

Civil Aviation Act 1990 – in Greenslade v Jetstar Airways Ltd [2012], NZERA Auckland 436, the Authority decided that a Jetstar pilot must take breaks in line with the Australian Civil Aviation Safety Authority’s Civil Aviation Orders. This decision was specific to the facts in this case; it is likely to apply to only a small number of airline flight crew members.

 

What happens to existing rest and meal break provisions in employment agreements?

Existing rest and meal break provisions in employment agreements will continue, unless:

  • for IEAs – the employer and employee agree to change the agreement
  • for collective agreements – there is agreement to change the collective agreement using its variation clause.

If you feel that you are not receiving your legal entitlements for breaks – our company can assist you in dealing with your concerns.

Source: MBIE

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