BusinessNZ says a recent amendment to the Crimes Act is likely to cause problems for employers.
The amendment makes it a criminal offence for an employer to intentionally not pay wages and entitlements to their employee.
Non-payment of wages and entitlements is already an offence under the Employment Relations Act.
Now it also becomes an offence under the Crimes Act – it becomes a criminal offence – if the offence is deemed to be intentional.
BusinessNZ says this doubling-up of legislation is superfluous, and could expose employers to double jeopardy – prosecution or punishment twice for a single offence.
As well, significant problems will arise from the need for proof of intention to commit the offence.
Employment courts operate with a lower standard of proof (based around the balance of probabilities), than criminal courts which require a much higher standard of proof (beyond reasonable doubt).
It will be difficult to bring conclusive evidence of intention to a criminal court, and therefore such cases will be difficult and expensive to win.
However the threat of a criminal charge may be used to ‘game the system’ in cases where no offence has been committed – for example, the threat of criminal charges may be used against an employer by an employment advocate, to gain an out of court settlement despite a lack of evidence that the employer had deliberately not paid an employee.
Such gaming is already prevalent in other areas of employment law such as personal grievances.
BusinessNZ believes the new amendment to the Crimes Act will not achieve greater justice for employees or employers, will not discourage gaming, and will simply create a more difficult legal environment for all concerned.
