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Work life and private life -
implications of social media
In the last decade the use of social media has
exponentially expanded. Social media such as Facebook enable users to interact
with large numbers of people, with immediate and permanent impact. Users of
social media might assume that their use of sites such as Facebook in their
own time has no relevance to their work life; however, the impacts of the use
of social media can overflow from a user's personal life to their work life,
with serious effects on both employee and employer.
The effects of the use of Facebook in an employee's own
time were recently illustrated in an Employment Relations Authority (ERA)
decision Blylevens v Kidicorp Limited [2014] NZERA Auckland 373. Kidicorp
employed Ms Blylevens as a centre manager. A number of staff and parents made
complaints about Ms Blylevens, which Kidicorp investigated.
During the investigation Ms Blylevens sought assistance from an advocate, Ms
Rolston. While representing Ms Blylevens, Ms Rolston posted derogatory
comments on her own business Facebook page. Ms Rolston made various comments
in two separate posts about Kidicorp, including allegations of Kidicorp
"removing unwanted staff", "bullying", describing HR as the "vindictive
Kidicorp HR Krew" and stating that Kidicorp created a "toxic" environment. Ms
Blylevens 'liked' Ms Rolston's posts, and added her own comment to one of
them, noting that it was "an interesting article" and "that as a parent
looking for childcare it's good to be informed".
Ms Blylevens was identified on Facebook as an employee of Kidicorp, and her
Facebook friends included other Kidicorp staff and parents. Ms Blylevens'
'like' of the posts ensured that Ms Rolston's derogatory comments were
disseminated to a wide audience. Kidicorp had a social media policy that
prohibited employees from posting information that could bring Kidicorp into
disrepute or that could cause reputational damage. After Kidicorp became aware
of Ms Blylevens' actions in 'liking' and commenting on the derogatory posts,
an investigation was launched. Ms Blylevens was dismissed for serious
misconduct.
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Inside this edition
Work life and private life - implications of social media
Trust law: trustees' duties - are you at risk?
Becoming a permanent resident in New Zealand
The Supreme Court
- 10 years on
The US Foreign Account Tax Compliance Act - an overview
Snippets
New Zealand's extradition laws - Law Commission review
Traffic law - can you bike home from the pub?
Print version
Ms Blylevens challenged her dismissal.
The ERA found that her dismissal was justified. Ms Blylevens' explanation that
her 'likes' did not endorse or support Ms Rolston's derogatory posts was not
accepted. The ERA likened Ms Blylevens' actions in 'liking' and commenting on
the posts to her standing outside the childcare centre and handing out copies
of Ms Rolston's derogatory comments about Kidicorp while telling people "here
is an interesting article - it is good to be informed". The ERA had no
difficulty in finding that Ms Blylevens' actions breached her employee
obligations of fidelity, loyalty and good faith.
This case clearly illustrates the need for employees to be mindful that their
use of social media in their private capacity and in their own time may have
unexpected implications for their employment. This case also provides
employers with some assurance that if an employee is using social media in a
way that may damage an employer's reputation, an employer can consider
disciplinary action.
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You might have been asked by a friend or family member to
be an independent trustee of a Trust. You may also have been appointed as an
executor of someone's estate, which will often also make you a trustee of the
estate assets.
Trustees have strict duties to the beneficiaries of the Trust. Most duties are
contained in the Trustee Act 1956. In certain situations trustees can be held
personally accountable for their actions or for failing to act, so it is
important trustees understand their rights and obligations.
All trustees must know the terms of the Trust (or the terms of the Will as the
case may be), and must ensure the Trust (or Will) is managed in an efficient
and economic manner. Trustees should take all precautions that an ordinary
prudent business person would take in managing similar affairs of his or her
own - a trustee must act with care and diligence. An independent trustee is
not a 'rubber stamp', meaning they must not blindly agree with and follow the
instructions of the remaining trustees or settlors; trustees must carefully
consider their decisions.
Trustees have a duty to make prudent investments. This duty applies to the
methods trustees use to make the investment, rather than looking at the actual
results of that investment. A failed investment is not necessarily a breach of
trust as long as the trustees acted prudently when choosing that investment.
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Trustees must be impartial.
They must consider the needs of each beneficiary and have a duty to manage the
Trust assets in the best interests of those beneficiaries in accordance with
the terms of the Trust deed or Will. Trustees must avoid being in a position
of conflict between their duties to the Trust and its beneficiaries.
Trustees are accountable to beneficiaries. They must keep proper accounting
records and may be required to give beneficiaries information and explanations
as to the investment of and dealings with the Trust property.
A breach of trust by a trustee can mean he or she is personally liable to the
beneficiaries for any loss caused, particularly if it was an intentional
breach of trust, dishonesty or negligence that caused loss. If a trustee can
demonstrate that he or she acted honestly and in good faith and that the
breach of the terms of the Trust was unintentional on their part, that trustee
would not ordinarily be liable to the beneficiaries for the consequences of
their breach.
When a Trust enters into a contract with a third party the trustees will
typically be personally liable to ensure that the contract is completed. They
may have a right to be indemnified from the assets of the Trust (meaning the
liability they incur will be paid for from the Trust assets); however they
will lose that right of indemnity if they act in excess of their Trust powers
or in breach of their Trust duties. In addition to this, any right to be
indemnified is only useful if the Trust actually has realisable assets. Recent
case law has seen an independent trustee personally liable for Trust IRD debt,
as the remaining trustees had fled the country. While the independent trustee
had the right to be indemnified, there were no Trust assets left to cover the
debt. The independent trustee paid the IRD debt using their own funds.
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The process to apply and become a
permanent resident in New Zealand can be complex, difficult and expensive for
some. Depending on your skill base and financial status this process can be
fast-tracked if your skills and investment are sought after.
New Zealand permanent residents are non-citizens who hold a permanent resident
visa. A visa is an endorsement given by the New Zealand Government that the
non-New Zealand citizen is allowed to enter, leave or stay in New Zealand for
a specified time and on specific conditions.
There are three types of visas granted in New Zealand under the Immigration
Act 2009. Transit Visas, Temporary Entry Class Visas (consisting of temporary,
limited and interim) and Residence Class Visas (resident and permanent
resident).
New Zealand permanent residents are not New Zealand citizens and therefore are
not afforded all the natural rights New Zealand citizens enjoy, which include
standing for public office, being entitled to New Zealand consular protection
and never being deported from New Zealand.
The first step towards gaining permanent residency is to be accepted to apply
for a resident visa by Immigration New Zealand. The categories that you may
apply under consist of:
* Skilled Migrant Category - based on specialist skills, qualifications
or experience. The person must also be aged under 55 years and meet English
language, health and character requirements,
* Work to Residence Category - for people that have worked for
two years on a work visa, meet health and character requirements and are from
an English speaking background,
* Entrepreneur Work Category - for people that want to move New Zealand
to buy or start their own business,
* Investment Category - for people that want to invest a large amount
of money in New Zealand,
* Family Category - for partners, children or parents of New Zealand
citizens or resident visa holders,
* Samoan Quota Category - for Samoan Citizens, or
* Pacific Access Quota - for citizens of Tonga, Tuvalu or Kiribati.
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Once the non-citizen has held the resident visa for a
period of two years, and held their resident visa in the last three months
consecutively prior to applying, they may apply for a permanent resident visa.
The non-citizen must meet criteria confirming that they are of good character,
meet any conditions that the resident visa was subject to and have met one of
the five commitments to New Zealand criteria (which are; spending enough time
in the country, becoming a tax resident, owning a business, investing in New
Zealand or establishing a base).
A permanent resident visa holder is entitled to be granted entry permission
into New Zealand at any time whereas a resident visa holder is only entitled
to apply for entry permission, and the usual rights granted to them in New
Zealand (which include: stay in New Zealand indefinitely, work or study in New
Zealand, receive free health care etc.) only become effective if entry is
granted into New Zealand.
The costs for applying for a resident class visa vary depending on the
non-citizen's country of origin and whether the application is lodged in or
outside of New Zealand and the category in which the resident class visa is
sought. If you have any queries or wish to seek assistance in order to gain
residency, we suggest you contact a lawyer with appropriate expertise in
immigration law.
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The Supreme
Court, New Zealand's final court of appeal, recently marked its 10 year
anniversary. Before 1 January 2004, the Judicial Committee of the Privy
Council in London was New Zealand's final court of appeal.
Decisions made in New Zealand Courts before 31 December 2003 still have the
right of appeal to the Privy Council. It is for this reason that appeals such
as the Teina Pora case are still being heard in London 10 years on.
The Court was
established to recognise New Zealand's independence, history and traditions,
to enable important legal matters to be resolved in New Zealand’s unique
context and improve access to justice. The Court will only hear appeals that
it considers are in the interests of justice.
The Court was created amid much controversy. There were, amongst other things,
concerns that the Court bench would be politically "stacked" and that it would
interfere with Parliament’s role as the country’s supreme law maker (a common
criticism of some foreign jurisdictions). These concerns appear not to have
eventuated.
In fact, the Court has undoubtedly increased access to justice. In the 1990s,
less than 10 appeals per year were being heard by the Privy Council. In
contrast the Court now hears on average more than 20 appeals per year. In
particular, the Court hears a far greater number of criminal appeals than were
heard by the Privy Council.
While arguments about whether or not the right of appeal to the Privy Council
should have been abolished may no longer be useful, at a recent forum held to
mark the Court’s anniversary, a number of legal academics met with the current
Judges of the Court to critique its performance.
A common thread in the
discussion was the suggestion that the Court's decisions be presented with
more clarity. Each of the five Justices who hear an appeal may deliver their
own judgment. Although the majority wins the day, each individual judgment may
have different reasoning, which can make judgments difficult to interpret. It
was proposed that the Court issue judgments in majority order and consider
single judgments for clarity's sake. On the flipside, it was acknowledged that
while these differences of opinion can make interpreting a decision difficult,
they can also be useful in future litigation.
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The Court's approach to Treaty issues
and criminal cases was applauded. In other areas, the Court was urged not to
equivocate but to develop the law by elaborating clear legal principles and
making clear cut decisions.
Criticism of the Court is the bread and butter of legal academics. Uncertainty
about the law is what drives litigants to Court, thus criticism of the Court's
performance is inevitable. The Court’s relative infancy must also be
considered. However, these criticisms should be viewed in the context of the
numerous decisions that have been welcomed by the legal profession.
The task for the Court will be to continue to build on and improve its
approach in providing clear legal principles and finality in the law.
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The Foreign Account Compliance Act (FATCA) is United States
(US) legislation, passed in March 2010 by the US Congress. FATCA is a
mechanism for the US Inland Revenue Service (IRS) to counter tax evasion, and
its far-reaching effects are already being felt in New Zealand.
On 12 June 2014, the New Zealand (NZ) and US Governments entered into an
intergovernmental agreement (IGA), whereby the NZ Government agreed to
implement legislative changes to pave the way for FATCA compliance by NZ
institutions. The IGA and FATCA then became NZ law on 30 June 2014, through
amendment to the Tax Administration Act 1994.
FATCA requires US citizens or tax residents to report certain foreign assets
to the IRS. It also requires foreign financial institutions (FFIs) to report
on assets they hold on behalf of US citizens, tax residents and some other US
entities. These reporting requirements are intended to act as a cross checking
mechanism for the IRS to combat tax evasion.
Under the IGA there are some NZ specific exemptions from FATCA's reporting
requirements, such as registered charitable organisations. There are also some
limited exemptions from the definition of FFI, such as for FFIs with only low
value accounts. FFIs will not be required to report on some accounts held by
US taxpayers where the value of the assets held does not meet an applicable
threshold. For example, a standard bank deposit account held by a US taxpayer
with a balance of less than US $50,000 or the equivalent in NZ dollars will
not need to be reported on.
However, in the absence of an exemption, a wide range of institutions are
subject to FATCA's reporting requirements: banks, insurance companies and
private equity firms amongst others.
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NZ FFIs that are subject to FATCA reporting requirements will need to achieve
“Complying FFI” status. Where an FFI does not achieve this status, it will be
subject to a 30% withholding tax on a number of different US-sourced revenue
streams, for example distributions of interest or sale proceeds.
Moving forward, the NZ Inland Revenue Department (IRD) will provide a secure
electronic system for sending and receiving FATCA reporting from NZ FFIs to
the IRS. This will save FFIs from having to each deal with the IRS directly.
NZ FFIs have been collecting data for reporting since 1 July 2014, and will
start providing FATCA reports to the IRD from 1 April 2015. The final date for
exchange of first year reporting between the IRD and IRS will be 30 September
2015, at which time NZ FFIs will need to have provided their first year’s
FATCA reporting to the IRD.
FATCA has already had, and will continue to have, implications for US
citizens, US tax residents and FFIs alike. Should you have any concerns as to
its implications for you or an institution you are involved with, you should
take advice from your legal advisor in conjunction with your tax specialist.
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New Zealand's
extradition laws - Law Commission review
The Law Commission released its
Issues Paper, "Extradition and Mutual Assistance in Criminal Matters" on 2
December 2014, with submissions on the Paper's preliminary proposals open
until 2 March 2015.
The Paper examined the Extradition Act 1999 and the Mutual Assistance in
Criminal Matters Act 1992 (MACMA), concluding that both need reform to meet
the challenges posed by a modern globalised world.
The Paper recommends
extradition laws be simplified to a two category approach, with one set of
procedures and requirements for New Zealand's closest extradition partners,
and another set for all other countries.
MACMA allows foreign countries to request New Zealand’s assistance in criminal
investigation and prosecution. Paper recommendations include:
* making MACMA more principle orientated and less technical so as to widen the
function of this legislation in terms of assisting foreign countries to
conduct searches and surveillance under our domestic framework, and
* simplifying the current framework so as to give effect to New Zealand's
international commitments.
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Traffic law - can you
bike home from the pub?
You cannot be charged with a drink driving
offence under New Zealand law while riding a bicycle, unless it has a motor.
Excess Breath/Blood Alcohol (EBA) charges only apply if you drive or attempt
to drive a motor vehicle, meaning a vehicle drawn or propelled by mechanical
power (see sections 2, 11 & 12 of the Land Transport Act 1998 [the LTA]). A
bicycle without a motor is not considered a motor vehicle (see Lawrence v
Howlett [1952]) nor is a bicycle with an electric motor of less than 300 watts
(see NZ Gazette 25 July 2013).
However, this is not without risk. While EBA charges can only apply while
driving motor vehicles, some other charges, such as careless driving, are not
restricted to your activities with vehicles that have motors. Someone cycling
home under the influence could be charged with careless driving if it can be
shown they have used their bicycle carelessly or without reasonable
consideration for other persons (see sections 2 & 8 of the LTA).
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If you have any questions about the newsletter items,
please contact me, I am here to help.
Simon
Scannell
S J
Scannell & Co - 122
Queen Street East, Hastings
4122
Phone:
(06) 876 6699 Fax: (06) 876 4114 Email:
simon@scannelllaw.co.nz
All
information in this newsletter is to the best of the authors' knowledge true
and accurate. No
liability is assumed by the authors, or publishers, for any losses suffered
by any person relying directly or indirectly upon this newsletter. It
is recommended that clients should consult S J Scannell & Co before
acting upon this information.
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