These notes from my Employment Advocacy practice are composite, blending features from a number of individual cases with names and details changed. I keep all my client's business and details absolutely confidential, both as a matter of professional ethics and also to conform with the terms of the settlements reached.

February 22, 2012

But I really want you to work for me!

Background

Ellen had been registered as an Electrician for a number of years, and her first couple of years working for a local family owned firm in a small provincial town were uneventful. The firm had been rebranded as part of a national franchise, and the transition had coincided with a change in management.

Vladimir, the founder, had been known locally as a “hard boss”, and when his son Garry took over as owner and manager, “Vlad the Impaler” continued to work in the business and filled in whenever extra labour was needed. While the building boom was in full swing, that was often, and everyone in the business was pretty busy most of the time. So busy in fact, that the management systems that came with the new rebranded franchise couldn’t be implemented, and most things were done the way they had been in the old firm under Vlad.

Trouble

There was some work Ellen wasn’t certified to do. Despite her protests, Garry directed her to do it, and signed it off himself as though he had done it. He wasn’t very nice to Ellen, but she needed the job, and although she kept protesting about being directed to do work against the regulations, she kept doing it and worrying.

Then the recession hit and work dried up. Garry told the staff that if they all pulled together, redundancies and layoffs could be avoided. He asked Ellen what were the absolute minimum hours she could manage on. Ellen was the principal breadwinner, with a husband, two kids and a mortgage, and her Individual Employment Agreement specified 40 hours per week, but she nevertheless told Garry that she could cope with a 30 hour week once a month. He told her that the firm could provide that much work, and Ellen trimmed her household expenditure accordingly.

But the promised 30 hours one week in four turned out to be a mirage. Most weeks Ellen was sent home after 25 hours or fewer, and her pay was reduced accordingly. Soon, her family was in financial trouble. Worse, Vlad and Garry took on a young fellow with no qualifications, paid him the minimum wage and gave him 40 hours every week. Worse still, they expected Ellen to train him to do work that was legally only able to be done by someone qualified, and when things inevitably went wrong, Ellen was blamed. Vlad was still calling the shots, and stalked round the premises and yard as if he owned them (he probably still did), and was openly abusive to Ellen. She had the good sense to keep a diary of Vlad’s abuse and to complain in writing about the way she was being treated. Garry responded to the effect that Vlad was not part of the firm and that he wasn’t responsible for Vlad’s behavior, and then “upped the ante” by calling Ellen into a “disciplinary meeting” that was a complete travesty of any fair process. He gave Ellen no proper warning of his concerns, no opportunity to get support or advice, and shouted at her that she “wouldn’t know shit from clay” and that he had a “whole lot of complaints about her work from customers”. When Ellen asked for specifics and who they were from, Garry refused to give her any more information and announced that he was giving her a “final warning”.

Call an Advocate

Ellen called me. She was very upset and when I questioned her she told me that she didn’t really want to keep working for Garry – both because it was an awful place to work, and that was clearly not going to change, and because it was also clear thet she was not going to get the hours she needed while the new worker was being given the work to save on wages. So we crafted a resignation letter, setting out what had been happening, and stating clearly that Ellen didn’t feel she had any option but to resign.

Legal issues

Garry was at risk in multiple respects. He had asked for a voluntary reduction in hours and then failed to keep his side of the bargain, he had employed another worker at a lower rate to do Ellen’s work and insisted Ellen train him and take responsibility for work she had not done and which was technically illegal. He had connived at Vlad’s bullying despite Ellen’s complaint and had conducted a disciplinary investigation which was deficient in every possible respect and then issued a totally unjustifiable “final warning”

Personal Grievances

While Ellen settled into the new job she eventually found, I notified Garry of PGs for Unjustified Disadvantage and Unjustified Dismissal by way of Constructive Dismissal (the employer acts in a way that leaves the employee no option but to resign). I expected this matter to resolve quickly. I thought that any lawyer or representative Garry consulted would say “You did it wrong – let’s settle this as cheaply as possible”, and we would cut a deal.

No way. I don’t know whether it was Vlad’s influence, or whether it was just bad luck, but they engaged the most unpleasant representative it has been my misfortune to come across. She came back with all sorts of irrelevant accusations and threats. She completely ignored the substance of Ellen’s complaints. She flatly refused to discuss any deal, and she refused to attend mediation.

The only way an unwilling party can be encouraged to attend mediation is by being directed to do so by the Employment Relations Authority, and before that can happen the applicant (in this case Ellen) has to file a Statement of Problem and give the repondent (Garry) the opportunity to make a “Statement in Reply”. Garry’s representative filed a SIR that almost made me laugh out loud. She said (on Garry’s behalf) that Garry really wanted Ellen to work for him and keep working for him, but then in the next section made all sorts of claims about Ellen’s poor work record, absenteeism, and insolent and abusive behavior towards Vlad (who she claimed at the same time to have no connection to the business).

Mediation

One of the strengths of the mediation process is that the Mediators employed by the Department of Labour are very experienced and know the law very well. As a result, they are usually able to persuade a party whose case is weak that they should settle the matter the matter rather than go to the ERA. I expected this is what whould happen in Ellen’s case. It didn’t. The mediator agreed with my assessment that Garry was “dog tucker”, and was quite clear with Garry, Vlad, and their rottwieler representative that she thought the ERA would find against them on all counts, but the three of them kept winding each other up to fight, and the mediation went nowhere.

Sometimes it is just not worth it

I started to worry about Ellen. She was getting quite upset, as she could see that Garry and Vlad were being egged on to fight by their rep, and that they were “digging in”. She started to talk about being unwilling to get into a fight in the ERA, even though she knew she would win. She asked me to try for a deal that would cover my fees and give her a grand as compensation for the stress she had suffered. The mediator agreed that this was probably the least stressful course of action, since Garry’s rep clearly did not understand the hopeless nature of his situation and was going to continue to encourage him to fight rather than offer a reasonable settlement.

The mediator eventually negotiated a settlement with the other side that involved paying my fees ($2500 inc) plus $1000 tax free to Ellen for her hurt and humiliation. I think Garry got off very lightly and Ellen lost out on what she would have got in the ERA, but sometimes a miserable settlement in mediation is better for the client than a fight. I haven’t had to deal with that particular rep again – thank goodness!

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