Employment Today – June 2004 issue      back to articles menu

“Employment Law; So much for the employee bias”

“You can’t get rid of staff these days” – “the law is all on the employee’s side”, “who would want to employ staff in this legal environment” – “one false move and you’ve got a PG filed against you”. I hear these statements so often that I have to take care lest it irritate me to the point of showing on my face… instead one takes a deep breath, smiles, and starts: “Have you considered that there might be an ‘equal and opposite’ side to that story…?”

Yes, more than half the decisions go against employers, and so they darned well should if the party (with all the resources and opportunity) for some inexplicable reason hasn’t got, can’t read, or refuses to follow simple, straightforward disciplinary processes, or deliberately and knowingly treats employees in an unfair, unjust manner. Those that persist in leading with the chin should not complain when someone lands a punch on it. Maybe the analogy of driving a car has a point – you can’t drive a car without a license, yet anyone can ‘drive’ a team of people. Perhaps we should think about licensing managers subject to proving ‘people management’ knowledge and skill, and make the possession of such a license a prerequisite before allowing them to employ and manage employees. Those that describe themselves euphemistically as Line Management and who in the same breath state that they don’t have time for Performance Reviews (for example) or learning even the rudimentary basics of Employment Law, have clearly missed the point about where their work results actually come from. Yes, I accept that there are some malicious employees out there who set out to make the employer’s life a misery, hope the employer screws up in its processes and who have the intention at the outset of filing a PG (the Professional Personal Grievant) but I put it to my gentle readers that there are just as many casual, thoughtless, ignorant and careless managers out there who still think they can dismiss staff on the spot because they personally are having a bad hair day, or, in just as many cases, who dismiss staff unjustly or treat them badly in the full knowledge that most employees don’t have a clue what their rights are, and of those that do, few have the assertiveness to take action. Many staff who are treated badly believe they are powerless and that resistance is futile. When ‘fired’ they go impotently and bitterly into the void, hoping to get another job and that the recruiter won’t ring the last employer for a reference. The employer waits out the 90 days, and then breathes deeply...

On what do I base all this? Personal observation of Employment Law in action. In order to make sure that my knowledge is up-to-date, and that my teaching is redolent with reality rather than academic bliss, I deliberately involve myself with employee and employer representation cases. Mostly I am involved in the employer’s camp. This year, coincidence or not, I have been involved with a few particularly nasty cases of abused employees and this I have learned – it’s not about who is actually at fault, and it’s not about truth, and the expression ‘we got done on a technicality’ applies just as much to the employee as it does the employer. I have also learned this: An employer can do whatever they like to an employee if, at the end of the day, it comes down to one word against another. You can bully as much as you like behind a closed door. If you bully the rest of the staff sufficiently, they won’t act as witnesses for the employee. Mediation is a joke when one party is only there because they have to be and it’s just the compliance step between nothing and the Authority, which they’re hoping the employee won’t have the testicular fortitude or the money to progress to, and most of them don’t have the money. It’s not about truth, it’s about technicalities. Try this: An employee’s relationship with his Boss deteriorates to a point where he starts looking for another job. He reaches a point where he has an offer from a prospective new employer and at the same time the situation at work becomes unbearable. Although he has yet to finally decide whether to accept the new job and there are still points to negotiate, he tenders one month’s notice as required by the Agreement, late in the afternoon, receipt of which is acknowledged in an email shortly after. The very next morning, on arrival at work, the employee is instantly dismissed in an intimidating, aggressive and humiliating manner, and the employer refuses to pay a months’ notice in lieu. An offer at mediation was so poor as to be insulting. At the Authority, the argument was not about ‘why did the employer terminate and refuse to pay notice’ but (incredibly enough) ‘At what point did the employee enter into an Agreement with the new employer’. Pardon? The employee found himself in the position of having to prove that he had not signed the Agreement with the new employer prior to resigning (accomplished by the simple expedient of supplying the dated Agreement), but then the argument became ‘at what point did a verbal agreement exist?’... Excuse me? This is telling us all that it is now a Breach of Agreement to look over the fence and consider potential employment elsewhere and/or that an employer, in similar circumstances, can bully, intimidate and terminate with impunity simply because the employee has dared to consider employment elsewhere and is in receipt of an ‘offer’. Whether a verbal Agreement existed or not is a murky argument at best but my point is that it appears this argument completely (and very effectively) took the focus off the employer’s precipitate and inexcusable behaviour on the morning the employee was terminated and turned the glare instead on the employee. Quite apart from all this – what sensible, responsible person resigns and then starts looking for another job? Did the employee get a fair hearing? I think not.

Bullying can take many forms. Try this: A skilled employee (‘Manager A’) in a technical management role, is happy and productive in his job, although the workload is enough for two people. A new Boss arrives and takes a dislike to Manager A. Decisions previously made by Manager A are now made by the Boss, who also starts directing Manager A’s staff personally, bypassing Manager A, who is progressively left out of the communication loop and starts to feel increasingly isolated and threatened. Attempts by Manager A to discuss this with the Boss are met with innocent denials, and then, out of the blue, Manager A is advised that his position is being made redundant, the job split in two, both jobs advertised, and that he can ‘apply for one of the positions’. ‘Apply?’ What did they mean, ‘Apply’ – they already had an employee doing all the tasks that made up the full role that was being split in two, therefore Manager A should have been in the position of discussing which position he was best suited for, not ‘applying’ to see whether or not he’d be successful in his application for one of them. It was Manager A’s reasonable perception (as a result of the Bosses behaviour) that the Boss was intent on removing Manager A from his employment. It was only through the involvement of an external representative, much to the irritation of the Boss, that this intended course of action was halted and mediation embarked on. The first Mediation failed, application to the Authority was made, and the adjudicator referred both parties back to mediation. In the end, after a great deal of stress on Manager A, mediation resulted in an apology from the company, the requirement to ‘apply’ was retracted, and a small non-financial reparation made – not including costs. Apparently, it was Manager A’s ‘choice’ to have representation. Without which, of course, he would by now be unemployed. So he had to pay money in order to protect his employment, the employer only grudgingly conceding. Justice? A fair deal? I think not.

Lastly, try this: A specialist (employee A) gets a job as an employee in a company. The vacancy arises because of the resignation and permanent departure overseas of employee B, who is also a personal friend of the Boss. All is happy until about 8 months into the job, when telephone conversations between the departed employee B and the Boss occur and are openly talked about among staff. Employee A is suddenly called into the Bosses office and told her position is redundant. Employee A leaves, but maintains contact with staff. Sure enough – you guessed it – 2 weeks later employee B arrives back in the country, takes up residence at employee A’s desk, takes on the same role, and answers employee A’s telephone extension. Mediation results in a cheque for a pitiful amount and an apology. Employee A, dispirited and contemplating legal costs to take the matter further, caves in and accepts. A small price to pay for a completely barefaced mischievous redundancy – and a successful one at that. Justice? A fair deal? I think not.

I enjoy teaching Employment Law to managers, and will continue to do so. I just get sick of hearing some managers whining about the Law being biased in favour of the employee. There is far more going on out there than ever reaches the Authority or even Mediation, certainly more than is ever published, and more than we will ever know about. In Cosmic, global terms I guess it balances out. For every employee who got a payout that they shouldn’t have on a fine point of Law, there’s a manager who got away with an unjustified dismissal or mischievous redundancy. But there’s one important difference. At the end of it all, Managers usually still have their jobs, and a supportive company to pay the legal costs. For the unsupported now-unemployed ex-employee who got a raw deal, cosmic balance is a hard concept to accept.

Carpe Diem

Steve Punter ANZIM, Dip Bus (PMER), NCAET, FHRINZ, GNZATD
Staff Training Associates Ltd, Auckland, New Zealand.
© Steve Punter 2004 All rights reserved by the author.

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