High Stakes in the Employment Relationship
From 1 March 2009 “ an employer and employee can enter into an agreement that, for the specified and agreed number of days, the employer can dismiss the employee without the employee being able to take a personal grievance for reasons of unfair dismissal.” Kate Wilkinson, Minister of Labour, 10.12.2008
“If the recession deepens in 2009, as many forecasters expect, the global jobs crisis will worsen sharply…” International Labour Organisation, 28.01.09
The labour landscape is undergoing some tectonic shifts. The staggering world economy and consequent worsening labour market coupled with the 90 day bill that the National Government has passed1., means employers and employees alike need to think about their rights and responsibilities in this new environment. It’s a high stakes situation for all parties.
As discussed in the previous blog, with the usual protections of employment removed from them, aggrieved employees will be turning to the remaining discrimination laws for security; especially given that a job in the hand is worth two in the bush in this environment.
Let’s look at some scenarios: Scenario one: If an employee on a trial takes two days off and cites Depression as the reason, how many employers, if they were being completely honest, would admit that that would have a significant negative influence on the decision to retain or dismiss that employee? If an employer did dismiss under those circumstances she would potentially expose herself to a discrimination case on the ground of Disability, because it encompasses psychiatric illness . If she were to dismiss, say, the day after the sick leave was taken, this could be interpreted as discrimination.
The times they are a changing. Survival will be to the prepared. Employees and employers alike will need to know what they want out of the employment agreement and they will need to know how to achieve it safely.
Scenario two: A woman is employed under a 90 day trial. 70 days in she’s still employed and, although nothing has been directly promised, she’s been receiving casual, positive feedback from her superiors on her work to date. She falls pregnant. The employer finds out from another employee, gives the woman notice and dismisses shortly after. In these circumstances the woman might pursue a personal grievance as a case of discrimination on the ground of sex. Why? Because pregnancy is considered to be part and parcel of being a woman. Also the timing is such that a connection could be drawn between the employer discovering the pregnancy and the dismissal. She may also be able to pursue a parental leave complaint.
What are some lessons we can take from these hypotheticals?
1. Timing is critical: From an employer’s point of view it’s very dangerous to dismiss shortly after discovering a fact about an employee which is protected under the anti-discrimination law, even if it’s genuinely unrelated to the dismissal.
2. As an employer, is it worth examining your attitudes towards certain races, the recently unemployed, the mentally ill? 2 Do you have prejudices? Will they get you in trouble?
3. As an employee, know your rights! Times are tough; you’re entitled to protect your employment with any means available.
Employers will need to think about their processes; they will need to be careful about what they say to employees and how they say it. There are potential pitfalls that, before the 90 day bill passed, went unexploited and that with jobs scarce will be exploited to the hilt.
Employees need to think carefully about whether they want to undertake employment with a trial period at all. They need think about that lack of security and what it might mean for them in terms of any debts, leases or dependants they may have and ask: Is this right for me?
The times they are a changing. Survival will be to the prepared. Employees and employers alike will need to know what they want out of the employment agreement and they will need to know how to achieve it safely.
1. Right now the 90 day trial act only applies to businesses of twenty or fewer employees, but National is less than a year into its first term and the Small Business Advisory Group, who were consulted by the government on the act, suggest that “consideration could be given to evaluating the outcomes of this legislative change with a view to extending it to cover all employers in the future”.
2 Did you know that? It might pay to familiarize yourself with all the prohibited grounds of discrimination. And perhaps to get some advice on what the grounds actually mean.
Joe Potter-Butler - Associate PBEL
