Individual Employment Agreement

1  Appointment and preliminary conditions

1.1 Subject to the following provisions, the Employer agrees to employ the Employee on the terms set out in this individual employment agreement (‘Agreement’).

1.2 The Employee’s employment will begin on the Commencement Date set out in Part A.

1.3 This Agreement is conditional upon the Employer being satisfied in its absolute discretion with the results of the following checks and tests it deems necessary in relation to the Employee:
a a pre-employment medical assessment;
b a criminal history check;
c a drug and alcohol test; and
d a reference check.

1.4 If any of the above conditions are not met, the Employer may cancel or terminate this Agreement with immediate effect.

1.5 To perform the role the Employee is required to hold (and continue to hold) the external qualifications or licences listed as Prerequisites in Part A. If the Employee ceases to hold the Prerequisites, the Employer may terminate this Agreement with immediate effect.

1.6 The Employee warrants that:
a all representations, whether oral or in writing, made by the Employee as to qualifications, skills, knowledge, experience and history in applying for this position are true and complete;
b the Employee has not failed to disclose any matter which, if known to the Employer, may have materially influenced the Employer’s decision whether to employ the Employee;
c the Employee is not prevented from taking up employment with the Employer by any obligation or duty owed to any other party, contractual or otherwise; and
d the Employee has the right to work in New Zealand and has disclosed any and all relevant visas or other restrictions which may apply to or govern their right to work.

1.7 If the Employee is in breach of any such warranty, or if it becomes known that the Employee did not disclose any matter that may have materially influenced the Employer’s decision to employ the Employee, then the Employer may cancel or terminate this Agreement.

2  Trial period

2.1 The Employee will serve a trial period of 90 days from the Commencement Date, in accordance with sections 67A and 67B of the Employment Relations Act 2000.

2.2 The Employer may, at any time during the trial period, dismiss the Employee by giving the Employee one week’s notice of the termination of their employment (whether or not that notice concludes during or after the trial period), or by making a payment in lieu of part or all of the notice period. The Employer may also place the Employee on garden leave in accordance with this Agreement for all or part of the one-week notice period. For the avoidance of doubt, the Notice Period provided for in Part A does not apply to termination under this clause.

2.3 In the event that the Employer dismisses the Employee during the trial period, the Employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.

2.4 Nothing in this clause prevents the Employer from terminating the Employee’s employment without notice in accordance with this Agreement.

3  Duties of the Employee

3.1 The Employee will perform the Position set out in Part A.

3.2 The main duties and responsibilities of the Employee upon commencement will include those specified in Schedule 1. The parties acknowledge that the Employee’s role may evolve and the Employee will undertake all duties reasonably within the Employee’s skills and capabilities, as directed by the Employer.

3.3 The Employee shall:
a devote the whole of the Employee’s working time, attention and abilities to the business of the Employer;
b faithfully and diligently perform the Employee’s duties and exercise such powers as may be vested in the Employee from time to time by the Employer, and work for the Employer to the best of the Employee’s skill and ability;
c comply with all reasonable and lawful directions given by the Employer;
d use all reasonable endeavours to promote the best interests of the Employer; and
e keep the Employer promptly informed at all times of all the Employee’s conduct and activities in connection with the business of the Employer.

3.4 The Employee shall not, without the Employer’s prior express consent:
a bind the Employer in any contract for sale or provision of services;
b hold themselves out as having any authority to do or say anything in the name of or on behalf of the Employer;
c provide any statements to or be interviewed by the media or press relating to the Employer or the Employee’s employment;
d receive any remuneration, payment or benefit of any kind from a client or prospective client for services of any kind; or
e do or say anything which damages or which could reasonably be expected to damage the interests or reputation of the Employer.

3.5 The Employee shall initially report to the Manager identified in Part A. The Employer may change this reporting line at its discretion.

4  Hours of work

4.1 The Employee shall work the minimum Hours set out in Part A. The Employer may vary those hours following consultation with the Employee.

4.2 The parties expressly acknowledge and accept that these days and hours may vary from time to time in accordance with the operational requirements of the Employer, which are influenced by unpredictability in client demand from day to day, and the need to cover for those who are sick, on leave or working beyond their capacity. For this reason the Employee will be required to be available and to work in addition to the Employee’s minimum hours from time to time. This may include working on weekends or public holidays. The Employee’s salary includes reasonable compensation for this additional availability.

4.3 If the Employee is unable to attend work on any particular day or the Employee will be late for work, the Employee shall personally advise the Employer as soon as possible that day.

5  Location

5.1 The Employee shall be primarily based at the Employer’s premises, which are currently at the Location specified in Part A, but may be required to work at other locations as directed by the Employer.

5.2 The Employer may change the Employee’s normal place of work to any place within a reasonable daily travelling distance of the Employee’s main residence.

5.3 The Employee may also be required to travel both nationally and internationally from time to time to carry out their duties.

6  Remuneration

6.1 The Employee will receive the Remuneration and any other benefits specified in Part A, subject to the deduction of income tax and any other agreed deductions.

6.2 The Employee agrees that the Remuneration is payment for the overall performance of the job, including any hours worked in addition to the Employee’s minimum hours.

6.3 The Remuneration will be paid weekly in arrears by credit transfer into the Employee’s nominated bank account.

6.4 Although the Employer will use its reasonable endeavours to ensure that the Employee’s Remuneration is paid on time, it will not be responsible if it is paid late because of bank transfer delays or other circumstances outside the Employer’s control.

7  KiwiSaver

7.1 The Employer will facilitate the Employee’s participation in KiwiSaver in accordance with the KiwiSaver Act 2006 and any amending or substituting Acts.

7.2 Compulsory employer contributions to KiwiSaver are currently set at 3% of the Employee’s gross salary or wages. The Employee agrees that the Employer can increase or reduce the compulsory KiwiSaver employer contribution figure in accordance with any amending or substituting legislation.

8  KiwiSaver contributions and total remuneration

8.1 The amount of any compulsory employer contributions to KiwiSaver will be sourced from the Employee’s total fixed remuneration package set out in Part A and will therefore reduce the Employee’s net salary (provided the Employee still receives the minimum wage). Compulsory employer contributions to KiwiSaver are currently set at 3% of the Employee’s gross salary or wages. The Employer may amend the compulsory employer contribution figure in accordance with any amending or substituting legislation. If the Employer agrees to make additional employer contributions to KiwiSaver, these contributions will also be sourced from the Employee’s total fixed remuneration, and will therefore also reduce the Employee’s net salary.

9  Expenses

9.1 The Employee shall be entitled to reimbursement for all reasonable expenses incurred by the Employee in the proper performance of the Employee’s duties. This entitlement is subject to prior approval and the production of such receipts or other evidence as the Employer may require.

10  Deductions

10.1 By signing this Agreement, the Employee gives written consent to the Employer to make deductions from any Remuneration or other money (including, but not limited to, holiday pay) owing to the Employee at any time during the course of the Employee’s employment or on termination of the employment.

10.2 To the extent permitted by law, deductions may be made for any sum which may be owing from the Employee to the Employer for any reason whatsoever (including in relation to property as provided for in clause 24.6).

11  Holidays Act

11.1 Clauses 12 to 16 below are inclusive of the minimum entitlements provided under the Holidays Act 2003. The parties agree that these entitlements will change in accordance with any amending or substituting Acts.

11.2 Further information on the Holidays Act 2003 may be obtained from any union of which the Employee is a member, or from the Ministry of Business, Innovation and Employment.

12  Annual holidays

12.1 The Employee is entitled to the Annual Holidays set out in Part A at the end of each completed 12 months of continuous employment, in accordance with the Holidays Act 2003.

12.2 The times at which the Employee’s Annual Holidays are to be taken will be determined, wherever possible, by mutual agreement and subject to the Employer’s operations. If the parties fail to reach an agreement, the Employer may direct when holidays will be taken.

12.3 The Employee will be given at least 14 days’ notice of the requirement to take Annual Holidays including in relation to close down periods taken pursuant to clause 12.5). The Employee shall give not less than 14 days’ notice of dates preferred for Annual Holidays.

12.4 The Employee will be paid for their Annual Holidays in the pay that relates to the period during which the holiday is taken.

12.5 The Employee must take Annual Holidays when the Employer’s operations customarily shut down. If the Employee is not entitled to leave or sufficient leave to cover the period of the close down, any leave and holiday pay (if applicable) will be dealt with in accordance with the Holidays Act 2003.

13  Public holidays

13.1 The recognised public holidays are New Year's Day, 2 January, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the birthday of the reigning Sovereign, Matariki, Labour Day, Christmas Day, Boxing Day, and the anniversary day of the Employee’s region or province.

13.2 The Employee agrees to work on a public holiday if required by the Employer. However, unless specifically required to do so, the Employee shall not otherwise work on a public holiday.

13.3 In the event the Employee works on a public holiday, the Employee will be paid for the hours actually worked at the rate of 1.5 times the Employee’s relevant daily pay rate or, where that cannot be determined, the Employee’s average daily pay rate (on an hourly basis).

13.4 The Employee is entitled to an alternative holiday if:
a a public holiday falls on a day that would otherwise be an ordinary working day for the Employee; and
b the Employee is required to work and does work, in accordance with this Agreement, on any part of that day.

14  Sick leave

14.1 The Employee shall be entitled to the Paid Sick Leave set out in Part A when the Employee meets the following requirements (the ‘Qualifying Requirements’) and at the end of each ensuing period of 12 months.

14.2 The Qualifying Requirements are that:
a the Employee has completed six months’ current continuous employment with the Employer; or
b the Employee has, over a period of six months, worked for the Employer for:
i at least an average of ten hours a week during that period; and
ii no less than one hour in every week during that period or no less than 40 hours in every month during that period.

14.3 Sick leave may be taken when:
a the Employee is sick or injured;
b the Employee’s spouse (including de facto) is sick or injured; or
c a person who depends on the Employee for care is sick or injured.

14.4 The Employee may accumulate Paid Sick Leave to a maximum of 20 days’ current entitlement. Any accumulated Paid Sick Leave will not be paid out on termination.

14.5 If the Employee intends to take sick leave (paid or unpaid), the Employee must notify the Employer as early as possible before the Employee is due to start work on the day that the sick leave is to be taken; or if that is not practicable, as early as possible after that time.

14.6 The Employee may be required to produce proof of sickness or injury if the sickness or injury is for a period of three or more consecutive calendar days, whether or not the days would otherwise be working days for the Employee. In addition, the Employer may require the Employee to produce proof of sickness or injury for periods of less than three consecutive days of sick leave, provided the Employer meets the costs of obtaining such proof.

14.7 Before allowing an Employee to return to (or remain at) work following a period of sick leave, the Employer may require further medical evidence pursuant to clause 21 of this Agreement. Any associated period of ongoing absence will be regarded as sick leave.

15  Bereavement leave

15.1 If the Employee meets the Qualifying Requirements (set out in relation to sick leave), the Employee shall be entitled to bereavement leave.

15.2 The Employee may take three days’ bereavement leave:
a on the death of the Employee’s spouse or partner, parent, child, sibling, grandparent, grandchild or a parent of the Employee’s spouse or partner; or
b on the end of a pregnancy by way of a miscarriage or stillbirth, where the miscarriage or stillbirth is suffered by:
i the Employee;
ii the Employee’s spouse or partner;
iii the Employee’s former spouse or partner, where the Employee would have been a biological parent of a child born as a result of the pregnancy; or
iv any other person, where the Employee or the Employee’s spouse or partner had undertaken to be the primary carer of a child born as a result of the pregnancy.

15.3 The Employee may take one day’s bereavement leave on the death of any other person if the Employer accepts that the employee has suffered a bereavement, taking into account:
a the closeness of the association between the Employee and the deceased person;
b whether the Employee has to take significant responsibility for all or any of the arrangements for the ceremonies related to the death; and
c any cultural responsibilities of the Employee in relation to the death.

15.4 If the Employee intends to take bereavement leave, the Employee must notify the Employer of that intention as early as possible before the Employee is due to start work on the day that is intended to be taken as bereavement leave; or if that is not practicable, as early as possible after that time.

16  Family violence leave

16.1 The Employee shall be entitled to 10 days’ family violence leave when the Employee meets the Qualifying Requirements and at the end of each ensuing period of 12 months.

16.2 Family violence leave may be taken when the Employee is a person affected by family violence, meaning:
a the Employee is a person against whom any other person is inflicting, or has inflicted, family violence; or
b the Employee is a person with whom there ordinarily or periodically resides a child against whom any other person is inflicting, or has inflicted, family violence;
regardless of how long ago the family violence occurred, and even if the family violence occurred before the Employee began working for the Employer.

16.3 The Employee may not accumulate family violence leave. Any untaken family violence leave will not be paid out on termination.

16.4 If the Employee intends to take family violence leave, the Employee must notify the Employer of that intention as early as possible before the Employee is due to start work on the day that is intended to be taken as family violence leave; or if that is not practicable, as early as possible after that time.

16.5 The Employee may be required to produce proof that the Employee is a person affected by family violence.

17  Parental leave

17.1 The Employee is entitled to parental leave in accordance with the Parental Leave and Employment Protection Act 1987 and any amending or substituting Acts.

18  Conflicts of interest and secondary employment

18.1 In this Agreement, a ‘Potential Conflict’ means any situation where the Employee, during employment with the Employer (including any period of garden leave), is or would become directly or indirectly interested (whether financially or otherwise, including through a family member), employed or involved in any business or activity which may:
a result in unauthorised use or disclosure of the Employer’s confidential information and/or Intellectual Property; or
b constitute, or have the potential to constitute, a conflict of interest with the Employer or the Employer’s business (or that of a Related Company); or
c negatively affect, or have the potential to negatively affect, the commercial reputation of the Employer, or any of its Related Companies; or
d affect, or have the potential to affect, the Employee’s ability to perform their duties and responsibilities under this Agreement safely and effectively; or
e adversely affect the health and safety of the Employee or any other employee or contractor.

18.2 Before becoming involved in any Potential Conflict, the Employee will inform the Employer of the details of the Potential Conflict. The Employer’s consent will be required. The Employer may withhold consent (or alternatively require that the Employee comply with certain restrictions as to duties, hours, location or other terms) if necessary to prevent or manage the risks arising from any such Potential Conflict.

18.3 Where the Employee is unsure whether there is any Potential Conflict, they will disclose the details of the situation that may amount to the Potential Conflict to the Employer. In particular, if the Employee is offered and accepts employment or engagement with a client, customer or supplier of the Employer, the Employee will immediately notify the Employer of the offer and the identity of the party making it.

18.4 The Employee shall not, without the express written consent of the Employer undertake secondary employment, whether with another employer or self-employed, which may adversely affect the employee’s work for the Employer. For the avoidance of doubt, this includes any freelance work.

19  Rules, policies and procedures

19.1 The Employer is entitled to introduce, vary or cancel rules, policies and procedures which will apply to its employees. Such rules, policies and procedures, and all variations and cancellations of them, shall come into effect as notified by the Employer from time to time.

19.2 All rules, policies and procedures shall constitute reasonable management directions and instructions to the Employee and be fully observed and complied with by the Employee.

19.3 The parties recognise that there may be circumstances in which it is not reasonable or appropriate for the Employer to apply a particular rule, policy or procedure.

20  Health and safety

20.1 The Employer will, so far as reasonably practicable, ensure a safe and healthy work environment for all employees in accordance with the Health and Safety at Work Act 2015 and any other health and safety regulations or amending or substituting legislation.

20.2 The Employee shall comply with all directions regarding health and safety and will carry out all duties safely and in a way that does not create risks for themselves and/or other people in the workplace. The Employee will also comply with the Employer’s health and safety policies and procedures.

20.3 The Employee is required to:
a report all incidents, accidents and/or near misses to the Employer;
b notify the Employer within one working day of filing any work-related personal injury claim with the Accident Compensation Corporation (‘ACC’) and provide the Employer with a copy of any relevant documents;
c advise the Employer of any medical condition, including stress or personal circumstances and non-work related ACC claims that may impact on the Employee’s ability to perform any duties safely and effectively; and
d notify the Employer if the Employee is diagnosed with, or receives any test results or other reasonable indication that they are suffering from, an infectious disease which may constitute a health and safety risk to employees or people present in the workplace (including, without limitation, COVID-19, Influenza, Measles, Mumps, Rubella, SARS, Tetanus and Tuberculosis).

20.4 The Employee acknowledges that the Employer may treat a breach of this clause as serious misconduct, which may result in disciplinary action up to and including summary termination of the Employee’s employment.

21  Medical assessment

21.1 The Employee agrees that the Employer may require the Employee to undergo a medical or psychiatric examination or assessment by a registered medical practitioner nominated by the Employer (whether or not the Employee has provided a medical certificate):
a prior to the Employee commencing their employment under this Agreement;
b if the Employee has been absent from work due to a condition, illness or injury;
c in the course of assessing whether the Employee is capable of performing the Employee’s duties in terms of this Agreement;
d if the Employer considers, in its opinion, that the Employee’s physical and/or mental health may be affecting the Employee’s ability to perform duties under this Agreement safely and effectively; or
e in deciding whether to terminate the Employee’s employment on the ground of ill health or injury.

21.2 The Employee agrees that the results of any such medical examination or assessment shall be copied to the Employer.

21.3 The Employer shall meet the costs of the requested medical examination or assessment.

21.4 If the Employee refuses to attend a medical examination or assessment under this Agreement, the Employer reserves the right to make a decision regarding the Employee’s fitness to perform the Employee’s duties under this Agreement on the information it has available.

22  Confidentiality

22.1 In this Agreement, ‘confidential information’ means all confidential information which is reasonably regarded by the Employer as genuinely confidential to it, including, but not limited to:
a the Employer’s financial affairs;
b trade secrets;
c business and technical information which is not generally known or available to the public and that is used by the Employer to operate, market or sell its own business and the business of its clients;
d business methods and management systems that have been developed by the Employer or are used by it to operate at a commercial advantage or differentiate its business in the market;
e pricing or other commercially sensitive information;
f information (including contact details) and records relating to or belonging to clients, customers, suppliers, staff and parties with whom the Employer deals commercially;
g information relating to the digital market in which the Employer carries out its business;
h information relating to data, statistics, trends or any other indications on how the Employer, its clients and/or their products are currently performing on the market or predicted to perform in the future.
i strategic information relating to marketing, advertising or any other commercially-sensitive aspect of the Employer’s business;
j strategic information relating to marketing and advertising carried out by the Employer on behalf of its clients;
k computer software that has been developed by the Employer or which is used by it to operate at a commercial advantage or to differentiate its business in the market (and any confidential data attached to that software);
l pending or prospective business transactions, marketing campaigns or proposals and advertisement designs;
m know-how specific to the operation of the Employer’s business developed by or for the exclusive benefit of the Employer which is not generally known to the public, including the Developed Intellectual Property as defined in clause 23.2;
n information that has been constructed or compiled from materials belonging to the Employer and that is used to operate at a commercial advantage or to market or sell its business, even though those materials may be in the public domain; and
o other information that the Employer informs the Employee is confidential.

22.2 The Employee agrees that, except to the extent required by law, the Employee will hold in confidence all confidential information which the Employee is provided or to which they have access or otherwise control.

22.3 The Employee will not, at any time during this Agreement or following its termination (for so long as the information continues to be confidential information), without the written consent of the Employer:
a use any confidential information;
b disclose any confidential information to any person, firm, company or entity;
c copy any material containing confidential information for personal use or for use by any other unauthorised person, firm, company or entity; or
d damage/destroy any confidential information.

22.4 The Employee will not, at any time during this Agreement (including any period of notice), without the express written consent of the Employer:
e send any confidential information or sensitive information to the Employee’s personal email account or other personal virtual address or account; or
f download confidential information or sensitive information from the Employer’s server or network, or otherwise copy confidential or sensitive information onto a personal electronic storage device (including an external hard-drive, mobile phone, tablet or laptop computer).

22.5 The Employee acknowledges that the Employer may treat a breach of this clause as serious misconduct, which may result in disciplinary action up to and including summary termination of the Employee’s employment and/or the Employer applying for remedies (including injunctive relief and/or damages).

23  Intellectual property

23.1 In this Agreement, ‘Intellectual Property’ means all intellectual property throughout the world existing under statute or at common law or equity, now or hereafter in force or recognised, including:
a copyright, trade secrets, trade marks, patents, inventions, designs, logos and trade dress, moral rights, mask works, know-how and any other intellectual property or proprietary rights, including any idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration and whether or not recorded in any medium;
b any application or right to apply for any of the rights referred to in paragraph (a) above; and
c all renewals, extensions, future equivalents, and restorations thereof, now or hereafter in force and effect.

23.2 ‘Developed Intellectual Property’ means any Intellectual Property created by the Employee during the Employee’s employment or in connection with it, whether:
a during or outside of normal working hours;
b within or outside the workplace;
c using the Employer’s or Employee’s property or equipment;
d relating to the business of the Employer; or
e capable of being used or adapted for use by the Employer in its business.

23.3 All Developed Intellectual Property must immediately be disclosed to the Employer and shall be the absolute property of the Employer. The Employee agrees that any rights of the Employee in the Developed Intellectual Property will automatically be transferred to the Employer on creation, without the need for further documentation, although the Employee will, if requested, execute any documents required in order to give effect to this clause.

23.4 The Employee irrevocably waives all the Employee’s moral rights in the Developed Intellectual Property.

24  Employer’s property

24.1 The Employee may be issued or provided access to certain Employer Property. In this Agreement, ‘Employer Property’ means all property belonging to or otherwise over which the Employer or any Related Company has rights, including, but not limited to:
a equipment;
b documents, letters or papers;
c keys or access tags;
d material or information (whether in electronic, written or other form) relating to the affairs of the Employer’s business or belonging to the Employer, its clients and/or its customers (including material which is within the Employee’s possession, custody and control);
e copies or extracts of any material referred to in paragraph (d) above; and
f relevant passwords or other access information for any material referred to in paragraphs (d) and (e) above.

24.2 The Employee must make sure that all Employer Property is kept safe, in good condition and properly maintained.

24.3 Upon the termination of employment for whatever reason, or otherwise as the Employer may request at any time, the Employee will immediately deliver to the Employer all Employer Property. For the avoidance of doubt, this includes all work-related material or information which is stored on any of the Employee’s devices, in other media or in personal accounts, and any related access details such as passwords.

24.4 To the extent that any work-related material or information is retained on any of the Employee’s devices, media or accounts, the Employee will ensure that such Employer Property is irretrievably deleted and will, upon request, confirm and/or provide evidence of this to the Employer.

24.5 Should any Employer Property be returned to or recovered by the Employer in a damaged condition (the damage being the fault of the Employee) or not returned, the Employer will, to the extent permitted by law and within a reasonable time, be entitled to recover from the Employee:
a the costs commensurate with the damage to the Employer Property;
b the costs associated with repairing the Employer Property; or
c the costs associated with replacing the Employer Property.

24.6 To recover any costs related to Employer Property, the Employer may deduct such costs from any money due to the Employee (including any final pay or holiday pay).

25  Protection of Employer’s proprietary interests

25.1 The Employee recognises that the Employee will, during the course of employment with the Employer, have access to confidential information as described in this Agreement, develop an in-depth understanding of the Employer’s strategies and systems, deal with the Employer’s key clients, customers, suppliers and intermediaries (who refer business to or facilitate business for the Employer or any Related Company) and develop relationships with key clients, employees, intermediaries and contractors of the Employer (‘proprietary interests’).

25.2 In recognition of the importance of these proprietary interests and in consideration of this offer of employment and the remuneration payable under this offer, the Employee agrees to be bound by the restrictive covenants under this clause.

25.3 The Employee shall not, during the term of the Employee’s employment and for the periods stated below (as applicable) from the date of termination of employment (the ‘Termination Date’), whether directly or indirectly and whether alone or with any other person:
a be involved in any capacity (including principal, agent, shareholder, director, contractor or employee) in any business that competes or may compete with the business or any part of the business of the Employer or of any of its Related Companies in which the Employee was materially involved or in respect of which the Employee holds confidential information as a result of their employment, without the Employer’s prior written consent. This restraint shall be limited to the geographic area or jurisdiction where the relevant business of the Employer or any Related Company operates or in which it markets its products or services (or where it is proposed that it will operate or market, where the Employee has confidential information relating to that proposal). This restraint shall apply from the Termination Date for the Non-Competition Period set out in Part A.
b solicit or endeavour to entice away any of the Employer’s or any Related Company’s clients, customers, suppliers, intermediaries, employees or contractors with whom the Employee had material dealings in the course of the Employee’s employment or in respect of whom the Employee holds confidential information as a result of the Employee’s employment, nor encourage or attempt to encourage such individuals to terminate, restrict or otherwise cause detriment to their trade relations with the Employer or any Related Company. This restraint shall apply from the Termination Date for the Non-Solicitation/Deal Period set out in Part A.
c perform any work for or engage in business with any of the Employer’s or any Related Company’s clients, customers, suppliers or intermediaries with whom the Employee was materially involved or in respect of whom the Employee holds confidential information as a result of their employment, in any way which damages or may damage the proprietary interests of the Employer or any Related Company. This restraint shall apply from the Termination Date for the Non-Solicitation/Deal Period set out in Part A.

25.4 Any reference to ‘client’ or ‘customer’ above shall include any prospective client or customer with whom the Employer or a Related Company is engaging in discussion with a view to establishing a business relationship, or to whom the Employer or a Related Company is marketing its business.

25.5 The restrictions in this clause shall survive termination of this Agreement.

25.6 The Employee agrees that they consider the restraints in this clause to be reasonable in all the circumstances and necessary to adequately protect the Employer’s proprietary interests, in addition to the Employee’s express and implied confidentiality obligations. However, if a court finds any of the restraints to be unenforceable, both the Employer and the Employee agree to accept any modification of the period or extent of any restraint required to make the restrictions enforceable.

25.7 The parties agree that the restraints in this clause shall be reduced by any period of garden leave in which the Employee is prohibited from contacting or communicating with, and does refrain from contacting or communicating with, the Employer’s clients, customers, suppliers, intermediaries, employees or contractors (as applicable).

25.8 If the Employee receives an offer to be involved in a business concern in any capacity during the term of their employment or before the expiry of the last of the covenants in this clause, the Employee shall give the party making the offer a copy of this clause. If the Employee accepts any such offer the Employee shall tell the Employer the identity of that party as soon as possible.

25.9 If the Employee is found to be in breach of any of the restraints in this clause, the Employer may apply to the Employment Relations Authority for an injunction restraining the Employee from continuing the activity or activities which are deemed to be in breach. Additionally, the Employer will also seek damages for any loss suffered as a result of the breach and a penalty for the Employee’s breach of contract and duty of good faith.

26  Suspension

26.1 The Employer may suspend the Employee:
a while investigating serious misconduct, negligence in the performance of the Employee’s duties or any other serious concerns relating to the Employee’s employment;
b where, because of a condition, illness or injury, the Employer believes that the Employee constitutes a risk to themselves and/or others;
c where a conflict of interest arises as a result of the Employee being offered and accepting employment with another employer (prior to notice of termination being provided); or
d where, for any other reason, the Employer reasonably considers it necessary.

26.2 Suspension may entail removal of the Employee from the performance of all or any of the Employee’s duties for such periods and on such terms as the Employer considers appropriate, including, but not limited to:
a directing that the Employee remain away from the Employer’s premises;
b restricting the Employee’s access to work tools, systems or property;
c requiring the Employee to provide the Employer any work-related information stored on any of the Employee’s devices or in other media or accounts, and any related access details such as passwords;
d directing that the Employee not act, or not represent themselves as having the authority to act, on behalf of the Employer; and/or
e directing that the Employee not contact any of the Employer’s suppliers, distributors, customers or employees unless requested by the Employer in writing.

26.3 A suspension will initially be on pay. If, however, the suspension continues beyond ten working days, the Employer may, at its discretion, continue the suspension without pay.

26.4 Notwithstanding suspension, the Employee must remain contactable and available as required by the Employer to perform any duties as may be directed.

27  Garden leave

27.1 The Employer may, at its discretion, place the Employee on garden leave for all or part of the Notice Period (set out in Part A) where the Employee is dismissed on notice or where they resign.

27.2 While on garden leave the Employee:
a will be paid and remain an Employee of the Employer;
b will remain bound by obligations of fidelity, trust, confidentiality, good faith and the express terms of this Agreement; and
c may be subject to all or any of the restrictions that may be imposed by the Employer during a suspension.

28  Termination

28.1 This Agreement may be terminated by either party giving to the other notice in writing of termination which is not less than the Notice Period specified in Part A.

28.2 The Employer may, in its sole discretion and at any point, make a payment in lieu to the Employee of all or any remaining part of the required Notice Period. This payment in lieu:
a will terminate the Employee’s employment with immediate effect;
b will be equal to the basic salary or wages the Employee would have been entitled to receive under this Agreement during the Notice Period (or remaining part), less income tax and other agreed deductions; and
c may be paid in equal instalments until the date on which the Notice Period would have otherwise expired.

28.3 If the Employee fails to give the required Notice Period in writing to the Employer, the Employee will not be entitled to any remuneration relating to the portion of the Notice Period not given.

28.4 Notwithstanding clause 28.1 the Employer may terminate the Agreement summarily (without notice) on any of the following grounds:
a serious misconduct by the Employee;
b repeated misconduct by the Employee;
c gross negligence by the Employee in connection with the performance of their duties;
d the Employee’s conduct is dishonest or fraudulent;
e the Employee is charged with any criminal offence that the Employer considers may bring the Employer into disrepute, impact on the Employer’s business or affect the Employee’s ability to perform their duties; or
f the Employee conducts themselves in a way (including conduct outside of work) which the Employer considers:
i damages or has the potential to damage the Employer’s business (including reputation or relationships with third parties);
ii is incompatible with the proper discharge of the Employee’s duties and/or the Employee’s role;
iii negatively impacts, or has the potential to negatively impact, on the Employee’s or the Employer’s relationship with other employees; or
iv otherwise undermines trust and confidence between the Employer and the Employee.

29  Abandonment

29.1 The Employer is entitled to treat the Employee’s employment as automatically terminated without notice where:
a the Employee is absent from work for more than three days without the permission of the Employer and in the absence of a reasonable explanation; and
b the Employer has made reasonable efforts to contact the Employee to clarify the reason for the Employee’s absence.

30  Dismissal for sickness or injury

30.1 Notwithstanding any entitlement to sick pay, insurance cover or leave (with or without pay), the Employer may terminate this Agreement by giving the Employee notice in writing which is not less than the Notice Period specified in Part A if, as a result of mental or physical illness, injury or a condition, the Employee is rendered incapable of the proper ongoing performance of the Employee’s duties.

31  Redundancy

31.1 Redundancy may arise where the Employee’s position becomes superfluous to the requirements of the Employer.

31.2 The provisions of clause 28 (Termination) will apply to any potential termination on the grounds of redundancy. However, the Employee shall not be entitled to any notice or compensation where the Employer:
a sells, transfers, restructures, merges, amalgamates, contracts out, outsources, or leases all or part of its business in any capacity, or an existing contract to which the Employer is a party terminates or expires (‘restructure event’); and
b the Employee is offered:
i another position with the Employer;
ii employment with any Related Company of the Employer; or
iii employment with a third party that is in any way related to the restructure event.

31.3 The Employee will not be entitled to any additional payment or compensation for redundancy.

32  Employee protection provision

32.1 This clause will apply if the Employer proposes to restructure (as defined in section 69OI of the Employment Relations Act 2000) and the proposal may result in the Employee’s work or similar work being performed by or on behalf of another person (a ‘new employer’). However, it will not apply if the Employee’s work falls within a category of work referred to in Schedule 1A of the Employment Relations Act 2000.

32.2 The Employer will, as soon as is reasonably practicable and taking into account the commercial and confidentiality requirements of the business, endeavour to arrange a meeting or meetings (if required) with the new employer before the business is transferred to the new employer.

32.3 The Employee will advised of any meeting or meeting with the new employer, the intended agendas of such meetings and who will be in attendance. The attendees will include the Employer’s representatives and representatives of the new employer.

32.4 The purpose of the meeting or meetings with the new employer will be to discuss and negotiate with the new employer:
a whether the Employee may transfer to the new employer;
a if the Employee transfers to the new employer, the terms and conditions of employment, including:
i whether the Employee will transfer to the new employer on the terms and conditions set out in this Agreement; or
ii whether the Employee will transfer to the new employer on different terms and conditions of employment; and
b if the Employee does not transfer to the new employer, what entitlements, if any, are available to the Employee.

32.5 The Employer will meet with the Employee after the meeting or meetings with the new employer to convey the outcome of the negotiations and the Employee’s entitlements (if any).

33  Resolution of employment relationship problems

33.1 Where the Employer is advised of the existence of an employment relationship problem (‘problem’) by the Employee, the Employer will discuss and attempt to resolve the problem directly with the Employee in the first instance.

33.2 If the problem cannot be resolved between the parties directly, the Employee or Employer may refer the problem to the Ministry of Business, Innovation and Employment for mediation, or to an independent private mediator (provided their costs are paid by the Employer). The Employee agrees to attend mediation if requested by the Employer.

33.3 Where the problem cannot be resolved through mediation, the Employment Relations Authority may be asked to determine the problem.

33.4 If the Employee believes they have a personal grievance:
a if the personal grievance relates to sexual harassment under section 103(1)(d) of the Employment Relations Act 2000, the Employee must raise the grievance within 12 months of the date that the alleged action amounting to the personal grievance occurred or came to the Employee’s notice, whichever is later; or
a for all other personal grievances, the Employee must raise the grievance within 90 days of the date that the alleged action amounting to the personal grievance occurred or came to the Employee’s notice, whichever is later.

33.5 If the Employee is outside the relevant 12-month or 90-day time period, and the Employer does not consent to the personal grievance being raised out of time, the Employee can apply to the Employment Relations Authority for leave to pursue the grievance on the grounds that the Employee’s delay in raising the grievance was caused by exceptional circumstances.

34  Whole agreement and interpretation

34.1 This Agreement contains the whole of the agreement between the parties and supersedes and replaces any previous contractual terms, conditions, representations, understandings or arrangements, whether written, oral or resulting from custom or practice.

34.2 For the purposes of this Agreement, ‘Related Company’ means:
a any related company as defined by the Companies Act 1993; and/or
a any entity that owns or is owned by the Employer or is owned by a third party which also owns the Employer.

35  Variation

35.1 Any variation to this Agreement must be agreed in writing by both parties, except changes recording remuneration increases pursuant to any remuneration review process conducted by the Employer.

36  Force majeure

36.1 In this Agreement, a ‘Force Majeure Event’ means:
a any major event such as a fire, natural disaster, war, terrorist act, pandemic or similar unexpected event that is beyond the parties’ control; or
a any restriction imposed by law as part of the response to an infectious disease or any other event referred to in paragraph (a) above;
which makes it impossible for either party to perform their primary obligations under this Agreement.

36.2 Neither party shall be liable for any omission or failure to fulfil obligations imposed by this Agreement as a result of or in connection with a Force Majeure Event which makes it impossible for either party to perform their primary obligations under this Agreement for a period of 2 weeks or more.

36.3 For the avoidance of doubt, should a Force Majeure Event occur, the Employer reserves the right to either:
a terminate this Agreement, should the Force Majeure Event prevent the primary performance of the Agreement for a period of one month or more; or
a completely suspend all performance under this Agreement (including but not limited to suspending the Employee’s pay) until it is possible for the parties to perform their primary obligations under this Agreement.

36.4 The Employee will not be entitled to any notice of redundancy or compensation where the Employer terminates this Agreement in accordance with clause 36.3(a).

36.5 Where practicable, the Employer will consult with the Employee before exercising its rights under this clause.

I, the Employee, declare that:

1. I have read, understood and accept the terms and conditions in this Agreement, including the warranties in clause 1.6, and have received a copy of this Agreement.
2. I was given the opportunity to seek independent advice and/or explanations of any term or condition which I did not understand prior to signing the Agreement.
3. I do not have any disability, medical condition, injury or illness which would affect my ability to carry out my duties and responsibilities under this Agreement.
4. The information provided by me is true and correct to the best of my knowledge and belief.
5. I understand that if the Employer discovers that I have supplied any false information or have misled the Employer in any way, this Agreement may be cancelled or terminated immediately.