by frog
Minister of Labour Kate Wilkinson released a discussion document on employment personal grievances today.
After a bit of waffle about the cost of personal grievances and the quality of employment advocates, the document cuts to the quick:
The Act contains an objective test for justifiable dismissal. Do you think the current test is appropriate or does it create uncertainty? If it creates uncertainty, can you please describe the areas that create uncertainty?
For example:i.what are your views on whether sufficient or too much emphasis is given to process rather than substance in a case?
ii. do you think minor irregularities in process should be given less emphasis than the actual substance of the personal grievance claim?
Or to paraphrase, “should an employer be able to get away with sacking an employee, even though the sacking was unfair?”
My answer to that one is an emphatic “No”, but the question seems to be worded to elicit the opposite response.
It gets worse!
Possible options are dependent on the findings from the review of the personal grievance system and your submissions on the following options:
- employees’ length of service (regardless of whether the employee is on a trial period) – employees would need to be employed at the same workplace for a specific period of time before they are eligible to raise a personal grievance
- extending the trial period beyond the current duration of 90 days for organisations with fewer than 20 employees and/or extending the personal grievance-free period during trial periods to medium-sized businesses (20-49 employees)
- reducing the current 90 day limitation period for raising a personal grievance with an employerreducing the current three year limitation period for lodging a personal grievance in the Employment Relations Authority or Employment Court so as to minimise the effects (financial, social and personal costs) arising after a considerable amount of time on parties
It sure doesn’t look pretty from a worker’s perspective. Repealing the Fire at Will law – remember, the one that was rammed through Parliament under urgency without any public submissions or Select Committee hearing at all – which already allows employers with fewer the 20 employees to sack them for no reason at all during the first 90 days of their employment isn’t even an option provided. I suggest you write it in.
Submissions on the discussion document can be made by 31 March 2010 through this response form (expand the response boxes as much as you want). Email it to ERconsultation@dol.govt.nz or post it to:
Review of Personal Grievances
Workplace Policy Group
Department of Labour
PO Box 3705
Wellington
Published in Economy, Work, & Welfare by frog on Tue, March 2nd, 2010
Tags: employment rights, fire at will, Kate Wilkinson, personal grievance, trial periods
on the trolls and those who are unable to keep on topic
Seems is is Kate Wilkinson who was misleading and misrepresenting here. Today’s “discussion document” is a clear indication that the nats want to extend the Fire at Will policy to an ever-increasing number of workers.
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So Frog – do you support the current system where sacked employees can threaten to take a greivance against their former employer, whether they have a case or not?
The lawyers advising the sacked employee know that most employers will pay out $10,000, regardless of if they have done something wrong or not, because even WINNING an employment dispute costs MORE than that.
This happens all the time.
It’s legalised extortion.
And it’s yet another reason why businesses, especially small ones, should think really hard before taking on any new employees (another reason not to employ more people is that every company by law has to pay for 10 weeks every year where employees don’t work)
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There are some good people doing that work, but there are also some cowboys who are quite prepared to take both employers and employees for a ride.
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photonz explains well that even taking paid annual leave (and tea breaks) off workers is not beyond the right of this country.
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SPC,
Photonz1 is a troll. But I have heard managers seriously discuss the merits of doing away with tea breaks (or at the very least stay at their desks); they didn’t even think they were discussing anything particularly controversial, they simply viewed tea breaks as 10 or 15 minutes of unproductive time.
These are the sorts of problems workers face all the time. Management often have no concept of the benefits of things like tea breaks. They don’t need tea breaks because they are wined and dined at business lunches, have tea and bikkies at meetings and so on; effectively that is their substitute for tea breaks. They forget the rest of us don’t get these sorts of things they are used to.
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Maybe someone will re-invent the wheel and do research confirming that workers are more productive after and for having breaks. Then they will look at ways to make the breaks more efficient for that purpose rather than object to there being any.
Smarter employers are already adding to their workplace ways to freshen up their workers to be more productive (all sorts of things are being tried).
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SPC – I’m not suggesting taking annual leave off employees – just stating that it is a very big risk to employ someone, AND you have to pay for ten weeks wages every year for no work (4 weeks holiday, 3 weeks paid stats and sick leave, and 3 weeks paid breaks).
On top of that if someone is stealing money and you sack them them, it’s well known they can steal another $10,000 by claiming an unfair dismissal, and it’s cheaper for businesses to pay up than to fight and win.
Under current law there are lawyers and dodgy ex-employees making a living out of fake unfair dismissal claims.
Is this the sort of law that incentivises employers to take on more employees, or to think twice before taking on new staff?
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samiuela – I’m sure there are bad managers, just like there are bad workers.
I’m just putting across the other side of the story with is so often missing on this site. A dose of reality is beneficial from time to time.
Perhaps you’d have a different point of view if you had to pay for staff out of your own money, risk your house and small business that you’ve spend years building up, and all with virtually no comeback if they rip you off, falsely claim unfair dismissal, lie on the cv or in their interview (surveys have shown over 60% of people have admitted to exagerating or lieing in their cv or interview)or just turn out to be a useless worker.
There are plenty of businesses getting ripped off that you never hear about. But it doesn’t only affect the businesses, but the whole employment situation.
As a small business, I’d quite like to employ more people, but it’s such a big risk and we have to pay for 10 weeks unproductive time so we’re far more secure if we don’t take on anyone else.
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* Say “No” to further erosion of employment rights
* Bankers – ‘the people’ are coming and they have pitchforks
* Will the Govt deny kiwis a second chance at higher education?
* Smart money backing rail
* This is a public service announcement
* National XT
* Leaky homes – $22bn to fix?
* Nats undermining open government
* Auckland: Why not?!?!
* If it ain’t broke don’t fix it, Paula
* S.O.RNZ (Save our Radio New Zealand)
* Economics is not as certain as some people make out – the minimum wage
and so on …
20 posts back, there’s the most recent one on an environmental issue.
Just saying.
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greenfly – rail is more environmentally friendly than road, so Gareth’s post sort-of counts. But I take your point.
Trevor.
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greenfly, if you have an idea for an environment blog post you’d like to write, get in touch with webmaster@greens.org.nz
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Thanks O Flippered One, I’ll do that!
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photonz,
Contract your workers. That way you get to negotiate all the performance guarantees you want. As an added bonus the onus for paying taxes, managing holidays and sickness falls on the contractor. You can even require they have public liability insurance so that if they stuff up and burn some ones premises down, your not the one footing the bill. If they don’t meet the contracted performance obligations then don’t renew the contract. It’s a very simple and effective way of handling employment issues.
Chances are that anyone with the smarts to be self employed or pay some one to manage them is going to be more likely to be capable to do the work required any how.
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I would suggest employers be very cautious indeed before following dlr’s 11:38 AM advice. “Employee” is defined in the Employment Relations Act 2000:
Employers who engage people who meet the definition of “employee” on sham contracts for service could end up very deep in the brown smelly stuff – not just with the Employment Tribunal or Court but with the IRD as well.
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The discussion document also proposes to remove reinstatement as the primary remedy for a successful personal grievance. David Garrett has argued at Kiwiblog that “fewer than 5% of employees actually wished to be reinstated. By the time a dispute reached the Employment Tribunal or its equivalent under the EMA, the employment relationship had invariably irreparably broken down.”
That may well be true, but only with the minority of grievances that actually go to hearing. The problem with removing reinstatement as the primary remedy is that it would then not be the primary remedy at the earlier stage of mediation, where the employment relationship has often not yet broken down to the extent that it is impractical.
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I just love this satirical comment on this at The Standard:
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Photonz1 has twice moaned about our paid leave provisions without come-back! S/he claims this is unproductive time! Does s/he want an employment regime without any paid-leave as was the case in the early years of the English industrail revolution.
Whatever claimed abuses of the PG system allowed for in the Employment Relations Act there needs to be provision against unfair dismissal or inappropriate employer behvaiour that is accessable by those victimised.
National-ACT are claiming the need for chnage with little empirical evience of abuse. They can show some evidence of the cost of dismisals where the sacked person claims it is unfair, but little evidence that the claims themselves are unjustified. The posts above are hypothetical case-studies, not evidence.
Further, if the Social Security Act was changed so as to permit people to claim the UB for leaving unsuitable jobs then there may be some drop in level of lodging PGs as often a PG lodgment is needed to avoid a 13-week stand-down because of poorly administered Social Security law. Hardly anyone leaves a paid job foe the benefit, as even in our low-waged economy you are much worse off on the UB than in a low-waged job.
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