June 3, 2012

Working on shaky ground

The EPMU is the country’s largest private sector union. They have recently given employers in general a “heads up” that they are going to try and negotiate a clause in all their agreements that the employer must establish that the buildings the workforce occupies are “earthquake safe”.

This sounds like a good idea – but as with most ideas, the devil will be in the detail.

There is a general provision in the H&SE Act for an employer to take “all practicable steps” to identify and mitigate hazards, and the definition of “all practicable steps” involves consideration of the severity of the hazard, the costs of the measures for various degrees of mitigation, and the employers resources. If an employer were to agree to an apparently innocuous clause in an employment agreement, they could well find that the ERA and the Courts held them to a higher contractual standard than the H&SE Act.

There is a further difficulty. Since a multitude of Local Authorities have adopted various engineering standards and regulations providing that buildings of various ages must meet varying percentages of the code, the standards are something of a dogs breakfast at present, and the question of what costitues “earthquake safe” is an open one.

This may become clearer when the Royal Commission considering the Christchurch earthquake brings down its report.

February 22, 2012

But I really want you to work for me!


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.


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).


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!

February 19, 2011

Sometimes the bad guys win.

People adopt and defend positions for a whole range of reasons, but sometimes, a well resourced employer would rather pay an expensive barrister than acknowledge they were wrong. Ultimately they can do that, and if they are prepared to throw money at the fight and escalate the risk for the worker, most people will back down and settle for much less than their case is worth to avoid a big risk.

Cheryn is a gay man who worked for a Govt Department. He was never hassled for being gay – in fact for the first six months of his employment he was never hassled at all. Then the team leader left and was not replaced, and things gradually turned to custard.

Peter, one of the other employees in the team, was grossly incompetent. He was careless with confidential information, and failed to complete documentation and follow the operating procedures that had been agreed. Peter’s interpersonal skills were woeful, he told lies to cover his deficiencies, and he made sexually innappropriate remarks about female clients that the female staff in the team and Cheryn found completely out of order.

Extensive training and a “quiet word” to Peter had been inneffective, and when Cheryn raised a lack of operational effectiveness as an issue the whole team should address, Peter and JR, who was his “mentor” turned on Cheryn and were quite abusive. Over the next six months Cheryn tried to have the deficiencies in the service caused by Peter’s incompetence and JR’s willingness to “cover” for him addressed officially. No show. Dick, their immediate manager sided with the other “straight” males and identified Cheryn as “the problem”. He did not find Peter’s sexual remarks out of order, and warned Cheryn against “causing trouble”.

Peter and JR began to actively bully Cheryn, and made his working environment really unpleasant. He raised the issue with his supervisor and told Dick the manager that Peter and JR were bullying him, but Dick just laughed and refused to take his complaint seriously. Cheryn’s supervisor wrote to Dick, complaining that the sexually innappropriate behavior around female clients had to be addressed, and Cheryn continued to complain about the bullying, which was getting worse every week.

More Trouble
Then Peter laid a complaint of bullying against Cheryn. The Department set up an investigation with very wide terms of reference. They seemed to be designed to give very wide scope for a finding that Cheryn had behaved innappropriately or contrary to the Department’s Code of Conduct. The investigation dragged on for months. Dick admitted to the investigator that Cheryn had complained to him that he was being bullied by Peter and JR. Eventually, Cheryn was completely cleared of bullying or innappropriate behavior towards Peter. But Peter and JR continued to bully Cheryn.

Cheryn’s health started to deteriorate because of the stress that Peter and JR’s bullying was causing, and his Doctor and his supervisor were both clear that he had to “get out of there”. He resigned from his position and took another job with lower pay.

Call an Advocate
Then he called me. He should have done that before he resigned. It is always better to make a strong case while the employee is still in the job and negotiate an exit package rather than have to deal with the situation where the employee has gone and then argue that they had no choice other than to resign.

Legal Issues
The legal position was very simple. Cheryn had complained to his manager Dick that he was being bullied. Dick’s failure to take Cheryn’s complaint seroiusly and investigate it was a clear breach of his duty as a good employer in terms of s103A of the Employment Relations Act. A Personal Grievance for Unjustified Disadvantage was as certain as it reasonably could be. Whether JR and Peter actually had been bullying Cheryn was of lesser importance. If it could be proved that they were, it would add to Cheryn’s Hurt and Humiliation and to the payment that he would receive in consequence, but the fact that Cheryn’s complaint was not investigated established the Unjustified Disadvantage.

If there had been any element of “gay bashing” or homophobia in Peter and JR’s behavior, the bullying would have been a Human Rights issue, and could have been taken to the Human Rights Commission, but Cheryn’s sexual orientation was not an issue (except that he was not part of the “old boys club” that operated in the Govt Depatment he worked in), so this was a matter for the Employment Relations Authority.

I also thought it was worth arguing that Cheryn had had no option other than to resign as a result of Dick’s action and the ongoing bullying from Peter and JR. If that could be established, then a Personal Grievance for Constructive Dismissal would entitle Cheryn to three months wages in addition to a payment for Hurt and Humiliation he would get for the Unjustified Disadvantage.

First Negotiations
I notified the employer of a PG for Unjustified Disadvantage and Unjustified Dismissal by way of Constructive Dismissal, and suggested we talk. They took a very long time to answer and when we eventually met, they (quite reasonably) asked for details and (quite unreasonably) then delayed the process of going to mediation for nearly six months.

The matter should have settled in mediation. Cheryn had complained of being bullied. There was no argument about that. His manager Dick had laughed at his complaint and failed to investigate it. No argument about that. But the employer would not address that issue and kept taking the argument sideways into a consideration of whether Cheryn had “really” been bullied, or whether he was the author of his own misfortune. I kept reminding the employer that publicity about an “old boys club” of male managers ignoring complaints of sexually innappropriate behavior by a male staff member would not be a good look.

We went away from the mediation with a request to supply more details of the bullying. We did, and months and months later, the employer finally determined to fight the case and we filed a Statement of Problem with the Employment Relations Authority and a hearing date was set down.

First Strike

Government Departments have deep pockets, and they engaged a very senior and experienced (and bloody good) barrister specialising in employment cases. They could have settled the whole case for less than what it costs to say “good morning” to him. He was enormously smart and competent, and after making mincemeat of me in a telephone conference to set a timetable for the case, he informed me that he would be calling a dozen witnesses, and that the hearing would take three days in consequence.

I had to tell Cheryn that the risks of proceeding further had just tripled. The ERA normally adopts a “tarriff” approach to costs, and awards the successful party about $2500 per hearing day. I didn’t think Cheryn’s risk of losing and having costs awarded against him were very high, but tripling even a low risk is something to be thought about.

King hit

For a three day hearing, Cheryns’ risk was about $7500 in costs if he lost. He calculated that the Govt Dept would be spending the thick end of $40,000 on the case, and decided to proceed. Then their barrister made a ridiculously low “Calderbank” offer to settle the matter.

There is more info about a “Calderbank” offer in the notes on Employment Law on this site, but the simple effect is that if a Calderbank offer is made and rejected, and the award eventually made is less than the “Calderbank” offer, the ERA can award the full costs of the proceedings against the winner – so even though Cheryn was fairly certain to win an award, if it was less than their low offer, he might be stuck with a $40,000 bill for costs.

There was no way he could take that risk, and I had to advise him to settle for an amount that was less than half what he could have reasonably expected to get from the ERA.

February 14, 2011

Shoot the subeditor

$4000 fine after chef’s alleged coke recipe http://www.stuff.co.nz/national/4651007/4000-fine-after-chefs-alleged-coke-r
The article was good – and adequately reflected the content of the Authority’s determination. The headline was nonsense, and manufactured sensational nonsense at that.

The Employment Relations Authority did not fine the employer. The Authority awarded a worker some money for hurt and humiliation, and some for lost wages after his employer failed to carry out a fair process and suspended him without pay or consultation. The “coke recipe” was only in the headline to titillate the reader’s imagination.

February 7, 2011

You never worked weekends – and the dog ate the payslips!

NZ Herald link: Cafe cheated worker of pay

The existence of this article raises some interesting questions. When the reporter rang me I realised that my intention to keep everything about all my client’s business confidential was about to be tested.

When a client comes to me with a problem, it is easy to keep the matter confidential right up until the time it goes before the ERA. Since 90% of my cases are resolved before an ERA hearing (called an Investigation Meeting), confidentiality is always part of the settlement, and rarely causes any difficulties or problems.

But once things go before the Authority (ERA), they are like Court proceedings and the hearings are open and the decisions (called Determinations) are public, and available to the press.

This was the second time that a reporter had followed up a favorable decision of the ERA on one of my cases, but previously the reporter concerned had gone straight to my client. This time they had come to me.

I had been intending to post about this case on the website in the usual way -with names and details changed to protect the privacy of the client, but since Determinations of the ERA are public documents and they named not only my client, but also me as her representative, strict confidentiality had already gone out the window. I told the reporter I didn’t want to comment and that I would advise my client not to, but she went ahead anyway and got comment from the employer.

So I can say something about it – but only based on the Determination.

The case was huge – not for the money, but for the amount of time and volume and complexity of the evidence. The café claimed my client started 3 months after she actually did and worked only 20 hrs per week (paid by cheque and accounted for through IRD) – but in fact she was working long hours and they were treating her like all the other workers and paying the bulk of the wages in cash. They told her they were paying the IRD the tax they deducted but they were actually pocketing it. They kept falsified wages and time records accordingly, but these records were clearly nonsense and not even internally consistent.

When push came to shove, the Cafe produced their other workers as witnesses. They gave sworn evidence that the Authority found “unsatisfactory” that they themselves had only worked limited hours, and that my client had worked only 20 hours per week and that no one had ever been paid in cash.
I am not surprised that the Authority found for my client. Her witnesses were consistent and straightforward, and her case was bolstered by a huge amount of documentary evidence.

The Little Turkish Café are threatening to appeal to the Employment Court, but I don’t ultimately think they will. I think they know that their witnesses will still be “unsatisfactory”, and my client’s 15cm file of documents will be just as convincing in the Employment Court.

September 6, 2008

Best Website – 2008 Plain English Awards – Finalist

I just got the news that this site has been selected as a finalist in the Best Website category at the 2008 Plain English Awards. I am delighted!

When people go looking for advice on employment law they usually have a problem in their workplace. It may be redundancy, or workplace bullying, or a personal grievance over dismissal. Whatever it is, the first thing they want and need is clear information in plain english. The site should be well structured and laid out so that the content is easy to understand.

Motuweb designed the website, and I wrote the content. We tried very hard to give information and advice in logical sequence and plain english. We are really pleased with the website and we are delighted that the 2008 Plain English Awards’ judges liked it too.

Good workplace relationships are built on clear commumication.
Successful advocacy and negotiation are also built on clear communication
The 2008 Plain English Awards promote clear communication. We support them wholeheartedly.

August 18, 2008

Tony Veitch and TVNZ

Some six weeks before being charged with assault and injuring with reckless disregard, Tony Veitch resigned from his positions with TVNZ and Radio Sport. The relevations in the media about a violent incident some years ago and his own admissions in relation to this matter had probably made his position untenable in any case, but they do raise some interesting questions about the extent to which an employer can hold an employee responsible for their behavior in a context that is “not related to their employment”. In another case noted on this site I described how the courts usually require a “nexus” of relationship between the behavior and the workplace before they will uphold an employer in disciplining a worker for bad behavior in an otherwise private capacity.

There are a number of possible grounds that might allow an employer to discipline a worker for bad behavior even when it is not apparently connected to the workplace.

One ground might be contractual. Some Individual Employment Agreements contain a provision to the effect that the employee must do nothing to bring the employer into disrepute, and the courts have on ocassion held that that term is implied in an Employment Agreement even when it is not stated explicitly in that agreement.

I don’t know what was in Tony Veitch’s Individual Employment Agreements with TVNZ and Radio Sport in relation to not bringing them as employers into disrepute, but in this instance, I believe that the Courts would be likely to accept the argument that the “not to bring into disrepute” term was implied even if it was not explicitly stated. I would certainly be happy to argue on those grounds because the employers concerned are prominently in the public eye, and especially because Tony Veitch, as their “frontman” represents them in a very real sense. If the “not bring into disrepute” term was in the contract, or if the ERA (or the Court) held that the term was implied, then disciplinary action could certainly be justified.

A second ground that could be argued (I believe sucessfully) in Tony Veitch’s case would be that the publicity surrounding the matter and the nature of the allegations made it impossible for him to do his job. He could not front the program, increase the ratings, maintain good relationships with sponsors and advertisers etc. Whether the employer would have to show a decline in ratings to justify removing Veitch is debatable – perhaps an expression of concern from a sponsor or an advertiser would be enough.

So TVNZ and Radio Sport could almost certainly have taken disciplinary action against Tony Veitch and dismissed him. But they didn’t. Instead, after some discussion (and presumably negotiation), he resigned.

Since Veitch went quietly (if you can call the minor furore at the time quietly), rather than being sacked and taking a Personal Grievance to the ERA, it is likely that some sort of settlement was arranged. His employers were on a hiding to nothing, and their interests were best served by cutting him loose and getting him away from their programs asap. They would not have wanted a messy fight with the inevitable attendant publicity dragged out for months. Since such settlements are always confidential, we will never know if a settlement was made or how much the employers paid to have Tony Veitch resign if one was.

February 27, 2008

Performance Related Dismissals

I recently read a report from the US about an employer who refused to let a worker’s parent be present at a “termination meeting” that she had called to deal with some “performance issues”.

That is quite interesting from a NZ perspective.

Here, caselaw under the Employment Relations Act has made it quite clear that an employee must be afforded opportunity to have advice, support, and representation throughout the
course of any disciplinary process. I get a substantial proportion of inquiries from the parents of employees who believe their offspring are being badly treated at work.

That is perhaps not surprising, in that it would be reasonable to expect that it will be the younger, less experienced and less self confident and assertive members of the workforce who will be most likely to be badly treated.

The “termination meeting” idea is also interesting from an NZ perspective. Here, any employer who summoned an employee to a “termination meeting” would risk a grievance for unjustified dismissal on the grounds that they had prejudged the issue of how the meeting would end and the performance issues would be resolved.

An amendment to s103 of the Employment Relations Act (now s103A) was introduced to make it clear that an employer must behave as a “good employer” rather than merely not behave unreasonably. Case law has since made it clear that the employer should ideally:-

  • Specify any performance deficiencies in some detail.
  • Afford the employee time, training and opportunity to remedy the deficiencies.
  • Give the employee ongoing and detailed feedback about their subsequent performance.
  • Notify the employee of continuing deficiencies in their performance and the possible consequences for their employment.
  • Give the employee opportunity to make submissions about the matter.
  • Consider the employee’s submissions.
  • Decide to terminate.
  • Give the employee opportunity to make further submissions.
  • Consider the further submissions.
  • Terminate.

A dismissal will not be held unjustified solely because the employer has missed out a minor step in the process, but missing two or three is risky, and conducting a process that is seen to be unfair is always fatal.

December 14, 2007

Xmas harassment -that’s not Rudolph’s nose!

Robert had worked for a small firm of couriers for several years. He was well regarded by management and other staff, and his “life of the party” antics at various social club functions seemed to go down well with everybody. (more…)

Xmas Party Disasters – Employment Law

Deck the halls with boughs of holly – tis the season to be jolly. And quite often to behave very badly when alcohol and the informal situation of a Staff Xmas function combine to lower inhibitions.
People can do or say embarassing things that they (and often the person they do or say them to) will later regret.

The employer’s general duty to ensure the health and safety of their staff will almost certainly include all the “host responsibility” measures that apply on licensed premises. It will also ideally extend to establising and reminding staff about policies to prevent sexual harassment and abusive behavior. It is very important that managers remain sufficiently in charge of their faculties to prevent and defuse any situations that could potentially give rise to a grievance for failing to take action to remedy a situation they knew about.

I dealt with a case last year in which a manager saw an older male employee leading a very drunk and much younger female employee away from the cafeteria during a staff Xmas “do”. The manager was himself tipsy and made ribald comments as they departed. He was later very upset to find himself on the recieving end of two grievances – one for humiliating the female employee, and one for failing to protect her from the sexual harassment she suffered at the hands of the older male employee.

One of the case histories on the site covers the issue of employee’s responsibilities at a “work do”.

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