Anyone thinking employment law is a bit of a dry, stuffy old affair need only take in some of the headline grabbers of the past few months to realise just how heated – and public – the fallout from workplace relations-gone-sour can become.
Three recent cases, interestingly, didn't even occur while employees were carrying out their work duties, as such. Still, these incidents became not only “employment issues”, but hot news for the masses.
The moral and legal ins-and-outs of the Christchurch-office-romp-in-full-view-of-a-whole-pub-of-snap-happy-social-media-savvy-spectators have been dissected ad nauseam. I’m not here to moralise or offer legal advice on the particulars. According to latest reports, both employees have since left the building – for good. We’ll likely never know whether they jumped, or were pushed. What is abundantly clear, though, is that what ensued was a full-glare nightmare for the participants, those close to them, and their employer – ironically a major insurance firm specialising in, of all things, risk assessment.
Janice’s Lesson Number 1: No matter how messy, seemingly unfair or scandalous, step one to resolution leads to the (hopefully well-drafted) employee’s contract, which should lay out the correct investigation and, if necessary, disciplinary process. Follow it. This is not the time for snap judgments, knee-jerk reactions and ditching the prescribed process – no matter how affronted, disappointed or exposed an employer might feel.
Record pay out
Remember, too, employer liability doesn’t stop with the Employment Relations Act or when a staff member leaves. And this is where things went way south for another employer … to the tune of a record total of $168,000 pay out to a former employee. The Human Rights Tribunal found the aggrieved woman had experienced a major breach of her privacy, resulting in “significant humiliation, significant loss of dignity and significant injury to her feelings”.
One recently-resigned employee baked something of a commiseration cake for another, who had also resigned; both felt they had been constructively dismissed. This cake, iced with some rather colourful epithets regarding the employer, was unveiled at a small, private get together. The baker uploaded a picture to Facebook, sharing it with 150 of her friends. She had gone on to work elsewhere, however, her former employer caught wind of the cutting cake. A senior manager coerced a junior staff member – one of the private Facebook friends – to access her account to take a snapshot. The manager proceeded to send the image to the cake baker’s new employer asking she be sacked, and also to local recruitment agencies, advising against helping the woman.
Janice’s Lesson Number 2: Social media can be as much of a bane for business, as it can be a boon. Ideally, in today’s ever-proliferating tech age, employers will have thorough and specific policies relating to Internet and email use, and the like, in the workplace. But business owners and managers also need to have appropriate knowledge, training and, if needed, case-specific advice, to judge where an employers’ rights to access and act on content lie.
Dining out on the company
In a third case, the Employment Court has just found against a US company, which has been ordered to compensate a former New Zealand-based employee after it deemed he was unfairly suspended and dismissed. In a nutshell, the man had spent excessively with the company credit card during a business trip to Thailand on food, drink … and had also been photographed in the company of escorts wearing company branded clothing. Inappropriate images were also found on his work laptop.
The firm the man worked for was taken over by another, shortly before his sacking. It was a manager working for the new business owner who suspended the man. Mistake number one, according to the Court. It concurred with the former staff member that he was not an employee of the new firm, hence, should not have been disciplined or fired by one its managers. In a further breach of process, the Court found the man had been pressured into resolving matters before the Christmas break, when he had requested his employer wait until his lawyer returned in the New Year. The Court awarded the man six months’ salary, plus interest, commission, and $9000 compensation, cut from $18,000 due to his own contribution to his dismissal.
Janice’s Lesson Number 3: On the face of it, this type of unseemly behaviour might strike some as “sackable” conduct. The case, however, serves as a stark reminder how important “due process” is. Investigations must be properly conducted and matters handled in an even-handed manner. Allegations or evidence of bad behaviour doesn't automatically eradicate a worker’s rights or an employer’s obligations, no matter how out-of-order the conduct might seem.
But wait, there’s more …
Even tougher sanctions for employers who breach employment standards or exploit workers are in the wind. The Government’s just announced a raft of new measures that will feature in the upcoming Employment Standards Bill.
Naming and shaming bad employers is on the cards, as are bans from hiring staff. Fines look set to increase markedly, from a $10,000 maximum for an individual, or $20,000 for a company, to $50,000 for an individual, and $100,000 for a company, or three times the financial gain – whichever is greater.
Janice’s Lesson Number 4: Navigating employment relations isn't easy. There is no way to perfectly template resolutions, because every situation is as unique as the people, workplace and dynamics behind them. Employers can insulate themselves, to a degree, by having sound, up-to-date employment contracts in place, underpinned by strong, well-communicated policies and procedures. Employment tussles can very quickly become highly-charged powder kegs. Getting independent advice, sooner rather than later, can avoid tunnel vision setting in, ensure you are following the correct process and help you resolve the issue early – or, at least, mitigate the risk and harm along the way.