Employment Today – October 98 issue                                       back to articles menu

Out with the old…. er, hang on…

Those of you who have been waiting for an employee to turn 65 so that you can turn them out to pasture (along with all that skill, knowledge and experience) will have greeted the latest law change with some alarm. The fact is that on or after February 1st 1999 you will not be able to request that an employee retire simply because they have reached age 65 – or any other age. So what if they wear coke bottle bottoms for glasses, talk with some authority to the filing cabinet, nod continually, shuffle their teeth around during lunch and talk at length about the good old days when Savage was running the country and a bloke knew where he stood?

The question is – can this person perform the task for which they were hired? If the answer is ‘yes’, then you don’t have a problem, do you? Some filing cabinets need a good talking to now and then, keeps them in line.

Seriously, I would have thought it to be a logical extension of non-discriminatory legislation, and compulsory retirement has never sat easily alongside the Human Rights Act or the discriminatory provisions of the ECA. Why should the event of the second hand of the clock moving one 60th of a minute further forward render someone instantly useless, invalid, no longer viable as an employee? Do they suddenly, magically, in a split second, lose all their skills and knowledges? Obviously not.

Being realistic, I know what the worries are. That when some people grow older, they lose their ‘drive’, become ‘slower of mind’, more ‘physically frail’, that they will not cope with stress, that sickness is more likely. I hear vague comments like the workforce will age, unemployment will rise, and younger people won’t be able to get jobs, or progress via promotion. I remember years ago hearing a couple of Deck Officers explaining high turnover among Officer ranks at a particular famous Shipping Line. The comment was made that if you wanted your own ship to command, you would need to leave the company and join another less famous one, since "a skipper had to actually die before he (sic) was replaced", which, from a career-minded younger persons point of view, is a fair concern. From the Shipping Line’s point of view it may suggest that they value extensive sea-going experience and the wisdom that comes along with it in terms of passenger safety. I personally suffer passing feelings of anxiety when I look at the young age of some of the pilots who fly the smaller commuter aircraft and find myself idly wondering how they would really cope in an emergency… There are many issues, some of which have yet to be resolved, for instance ‘What will be the situation where a contract exists that specifies a retirement age?’ (The argument will probably turn on whether a contract that predates the law change can be allowed to contract out of the new Law or whether that contract provision must be set aside) however the central issue for this article is that of no longer being able to require someone to stop work and depart your employ based purely on age.

The question commonly leveled at me regarding this is couched in words such as "So, how the hell do you get rid of someone if you can’t retire them?"

This of course assumes that the worker’s job performance has fallen to an unacceptable level. What other reason might you have for wanting to be rid of them? They don’t ‘fit in’? They’re too ‘conservative?’ Or is this really a redundancy… So, the question should be:

"What performance measurement systems should I have in place applicable to all staff members regardless of age or any other circumstance, how should I go about communicating performance issues to all staff members, and what processes do I need to have in place (and enact across all staff) in the event of a performance shortfall?".

We know for a fact that workers perform better when they have regular opportunities to discuss their own performance in both an informal casual way and in a structured formal way. We know from comments coming from the Employment Court to the effect that ‘the first point at which an employee finds out there is a performance problem should not be in the form of a warning’ that the Courts want to see an equitable system of regular performance feedback of the positive variety so that when there is a negative to be addressed this can occur within the existing feedback system – not at an unusual event especially convened for the purpose of negative feedback.

Leaving aside offences of serious misconduct, which may result in instant dismissal, a drop in performance most often occurs over a period of time. The legal problem occurs where there is no routine system of formal (documented) feedback and where the problem is ‘tolerated’ for some time, finally (and for the first time) being addressed through a warning process. In other words, from ‘zero awareness’ to a first warning in a split second. You can see from this that an annual appraisal system is next to useless if that is the only event at which formal performance feedback occurs.

Managers often tell me that they are busy enough as it is, that performance feedback meetings are an extra burden. My answer to that is that the Manager regardless of title is in fact a Team Leader, and that it is through the efforts of the Team that the Leader produces the desired result, and that therefore any system of diagnostic feedback that improves Team Performance is not a chore but an essential management task. If you’re not doing it, not only are you missing a tried & tested motivational tool, and leaving yourself with no system to support disciplinary action in the event of performance shortfall, but also you are quite simply guilty of neglect. Is it really asking too much to have you reserve 20 minutes per employee per month for an informal chat (the gist of which is documented), and a formal (documented) session every six months? Once you have the system in place for all staff, and it’s been working for a while, then if you do have to address performance shortfalls in a serious way then it is part of a system that applies to all staff equally, not just to those who have reached some magic age.

So if it’s not physical frailty that you’re worried about, it can only be their failing mental ability. I am no expert on senile dementia, but from having three senior folks close to me that suffer from it, I can tell you that it is usually a slow onset. It doesn’t happen suddenly except in some circumstances associated with the administering of anaesthetic during surgery. From my contact with senile dementia it appears to begin with a slow realisation, over time, that the person’s short-term memory is deteriorating. They can remember with sparkling clarity the events in a boardroom argument in 1968, but can’t remember what they had for lunch. Clearly, this is a significant problem for an employee of any age, and if you have the systems of performance feedback in place, it can be addressed just like any other performance problem. It is not the age that is the problem – it is the effect of a failing memory. Just to put this in perspective – how many of us have not, at some stage while on a long car journey, passed through a small town and later in the journey have no recollection of doing so? And you’re in charge of a killing machine?

In the event that a person’s mental processes are harmed to the extent that they can no longer perform their tasks or if they become unable to perform through physical frailty, and if given reasonable time this sickness cannot be corrected such that they can perform, and if the nature of their employment can’t be altered to accommodate physical frailty just as you would someone in a wheelchair, then if the consultative process fails and a voluntary departure does not eventuate, you already have remedies through ‘frustration of contract’ in that one party to it clearly, provably, cannot fulfill their part of the bargain.

I can tell you now that when I am 65, which is not so far away as to be invisible on the horizon, if I am in possession of my marbles and physically able to perform the tasks I have contracted to perform, then I will demand to be judged on the basis of that performance. From 1st February 1999, that is what you must address. Just like any other employee, of any age. I promise I will not juggle my dentures at the lunch table while speaking reverently of the time Winnie the P stood up to the Establishment, and my conversations with the desk lamp-shade will be carried on in hushed tones.

Carpe Diem

Steve Punter ANZIM, Dip Bus (PMER), FHRINZ
Staff Training Associates Ltd, Auckland, New Zealand. email: steve@sta.co.nz
Steve Punter 1998 All rights reserved by the author

steve@sta.co.nz                                                                                                                                 back to articles menu