Stuff.co.nz reports that a 16 year old schoolgirl has been sacked from her part-time job in a cafe in England after she lost GBP10, intended to be used to buy some biscuits for the staff. A bit harsh, but the kicker comes from the way the luckless lass was told of her downfall - by Facebook.
Her boss sent the message to the girl's Facebook account when she couldn't raise her by telephone. We think this passage in particular had a certain elegant simplicity which couldn't be misinterpreted:
"I had to tell the owner bout u losin that tenner coz obviously the till was down at the end of day. she wasn't very pleased at all and despite me trying to persuade her otherwise she said I have to let u go. I'm really sorry".
In 2003 2,500 staff were dismissed by an English company by text. As the company went into receivership, there wasn't much the employees could do.
Could this happen in New Zealand? Well, yes. Would it be fair? Umm - maybe. If an employee was within the first 90 days of a valid trial period she could be dismissed without having the right to raise a personal grievance, unless there was some element of discrimination or other unfairness apart from the mere fact of dismissal. Being told about that decision by Facebook or text would not be any less effective than by any other method, so long as the employee reads it.
ThinkN of sackng sum1 by txt? Ask us 1st!
Wednesday, March 24, 2010
Thursday, March 18, 2010
When being coy could cost you your job
A recent determination of the Christchurch Employment Relations Authority held that the dismissal of a firefighter after he had deliberately withheld information about his mental health was justified. The firefighter had suffered mental health issues in 2008 which led to an enquiry about his mental history. It was then revealed that the firefighter had neglected to disclose previous mental health conditions.
This case should not be taken as an excuse to sack any member of staff who fails to front up with information about their medical conditions though. The starting point is that asking questions about medical conditions could be unlawful. The Human Rights Act 1993 prohibits a prospective employer from making inquiries of a job applicant which could indicate an intention to commit an act of discrimination on a prohibited ground. As the mental health issue could amount to a disability, at first sight asking questions about some one's health will not be permitted if the reason for asking is to wean out those who have disabilities.
The reason the Fire Service was allowed to ask the question in this case, and furthermore, dismiss the employee for failing to answer the question truthfully, was that the Human Rights Act makes it permissible to treat disabled people differently under certain circumstances. One is where the job is such that the disabled person could perform those duties only with a risk of harm and it is not reasonable to take that risk.
So, in this case, where fire fighters have to be particularly robust physically and mentally, it was legitimate to ask the health questions and expect honest and full answers. The failure to answer the question truthfully could have put the fire fighter, his colleagues or others at risk.
However, don't expect the same approach to be followed in a case where a non disclosed medical condition would create no material risk or where the risk could be reduced to an acceptable level by measures which do not cause unreasonable disruption to the employer.
In other words, before asking medical questions of job applicants, be very clear why you are asking them and identify what risk of harm could be created by a positive response.
This case should not be taken as an excuse to sack any member of staff who fails to front up with information about their medical conditions though. The starting point is that asking questions about medical conditions could be unlawful. The Human Rights Act 1993 prohibits a prospective employer from making inquiries of a job applicant which could indicate an intention to commit an act of discrimination on a prohibited ground. As the mental health issue could amount to a disability, at first sight asking questions about some one's health will not be permitted if the reason for asking is to wean out those who have disabilities.
The reason the Fire Service was allowed to ask the question in this case, and furthermore, dismiss the employee for failing to answer the question truthfully, was that the Human Rights Act makes it permissible to treat disabled people differently under certain circumstances. One is where the job is such that the disabled person could perform those duties only with a risk of harm and it is not reasonable to take that risk.
So, in this case, where fire fighters have to be particularly robust physically and mentally, it was legitimate to ask the health questions and expect honest and full answers. The failure to answer the question truthfully could have put the fire fighter, his colleagues or others at risk.
However, don't expect the same approach to be followed in a case where a non disclosed medical condition would create no material risk or where the risk could be reduced to an acceptable level by measures which do not cause unreasonable disruption to the employer.
In other words, before asking medical questions of job applicants, be very clear why you are asking them and identify what risk of harm could be created by a positive response.
Young, but not always fancy free
A bid by ACT MP Sir Roger Douglas to introduce a youth pay rate into the minimum wage will not be supported by the government, it was announced yesterday. The idea behind the proposal was to encourage employers to take on young workers but there was no support for the idea from the National Party, which does not believe it would relieve youth unemployment.
In our view, the legislation is complex enough, and given the government's commitment to relieve burdens on business, it was right to reject what would have been a further layer of complexity.
The current minimum wage in New Zealand for almost all workers of 16 and over is currently $12.50, rising to $12.75 from 1 April 2010. We say "almost all" because there are exceptions:
1 The legislation allows employers to pay below the minimum wage (but no less than $10.00 an hour, rising to $10.20 an hour from 1 April 2010) when the new entrant is a worker who is 16 or 17 years old, until they have completed three months or 200 hours of employment, whichever is shorter, or if they have been supervising or training other workers. The three months or 200 hours includes employment undertaken with different employers but excludes any employment undertaken before reaching 16 years old.
2 The training minimum wage applies to employees aged 16 and over who are doing recognised industry training involving at least 60 credits a year. The minimum rates are the same as for new entrants.
3 A Labour Inspector may issue a minimum wage exemption where it would enable a person with a disability to gain employment and a range of other criteria are satisfied.
Apart from the minimum wage, the Human Rights Act 1993 protects employees aged 16 or over from being discriminated against in their employment on the grounds of age. That means that a young person cannot be treated less favourably than other employees on the grounds of age, so long as he or she has the same or substantially similar capabilities as other employees who are employed in the same or substantially similar circumstances.
In other words, you can pay a young person aged 16 or over less than other workers (but not less than the relevant minimum wage) if you are reasonably satisfied that their capabilities are less than those of older workers. As they learn and develop you would have to keep the situation under review and equalise their pay and benefits when their performance is at a par with that of older workers.
We all remember our first proper job. Most of us were enthusiastic and threw ourselves into it, willing to learn - and we did, fast. In return, being employed gave us independence and helped cement our place in the adult world. Youth unemployment is a nation wide problem that won't be solved by tinkering with wage rates. Employers need to open their eyes to the benefits of employing young, enthusiastic and creative people and not make assumptions based on age alone. (On the other hand, as this writer is nudging 50, I'm bound to comment that the young don't have the monopoly on enthusiasm and creativity!).
In our view, the legislation is complex enough, and given the government's commitment to relieve burdens on business, it was right to reject what would have been a further layer of complexity.
The current minimum wage in New Zealand for almost all workers of 16 and over is currently $12.50, rising to $12.75 from 1 April 2010. We say "almost all" because there are exceptions:
1 The legislation allows employers to pay below the minimum wage (but no less than $10.00 an hour, rising to $10.20 an hour from 1 April 2010) when the new entrant is a worker who is 16 or 17 years old, until they have completed three months or 200 hours of employment, whichever is shorter, or if they have been supervising or training other workers. The three months or 200 hours includes employment undertaken with different employers but excludes any employment undertaken before reaching 16 years old.
2 The training minimum wage applies to employees aged 16 and over who are doing recognised industry training involving at least 60 credits a year. The minimum rates are the same as for new entrants.
3 A Labour Inspector may issue a minimum wage exemption where it would enable a person with a disability to gain employment and a range of other criteria are satisfied.
Apart from the minimum wage, the Human Rights Act 1993 protects employees aged 16 or over from being discriminated against in their employment on the grounds of age. That means that a young person cannot be treated less favourably than other employees on the grounds of age, so long as he or she has the same or substantially similar capabilities as other employees who are employed in the same or substantially similar circumstances.
In other words, you can pay a young person aged 16 or over less than other workers (but not less than the relevant minimum wage) if you are reasonably satisfied that their capabilities are less than those of older workers. As they learn and develop you would have to keep the situation under review and equalise their pay and benefits when their performance is at a par with that of older workers.
We all remember our first proper job. Most of us were enthusiastic and threw ourselves into it, willing to learn - and we did, fast. In return, being employed gave us independence and helped cement our place in the adult world. Youth unemployment is a nation wide problem that won't be solved by tinkering with wage rates. Employers need to open their eyes to the benefits of employing young, enthusiastic and creative people and not make assumptions based on age alone. (On the other hand, as this writer is nudging 50, I'm bound to comment that the young don't have the monopoly on enthusiasm and creativity!).
Wednesday, March 10, 2010
Child's play?
The air traffic control community in the USA is in a tailspin after it was revealed that an air traffic controller let his young son broadcast some routine messages to pilots at New York's JFK Airport. The controller has been suspended and an investigation ordered. As the controller said, "That's what you get, guys, when the kids are out of school".
With the Easter holidays looming, some of you may be tempted to bring your own young 'uns to work. So long as the boss is happy, that should be fine you think - the children get to see where you work, and may learn something into the bargain. But a few simple rules will keep the kids, and you, out of trouble.
● Agree with the boss what they can and can't do.
● Plan some activities; just plonking them at a spare desk with their Playstation for hours will make your colleagues think you are a bad parent.
● Bear in mind their age and capabilities. If you give them something to do, make sure you explain it to them, and help them. Forcing them to do a year's worth of your filing is just going to make them hate work (and you) forever.
● Don't dump them on your secretary or the receptionist for hours.
● Keep them away from hazardous environments. Unless you're going to keep them under constant supervision, avoid the factory floor and never let them drive the forklift!
● Make it fun. You don't want them to think your life is spent in a dreary office doing mind numbing drudgery. Or maybe you want their pity?
With the Easter holidays looming, some of you may be tempted to bring your own young 'uns to work. So long as the boss is happy, that should be fine you think - the children get to see where you work, and may learn something into the bargain. But a few simple rules will keep the kids, and you, out of trouble.
● Agree with the boss what they can and can't do.
● Plan some activities; just plonking them at a spare desk with their Playstation for hours will make your colleagues think you are a bad parent.
● Bear in mind their age and capabilities. If you give them something to do, make sure you explain it to them, and help them. Forcing them to do a year's worth of your filing is just going to make them hate work (and you) forever.
● Don't dump them on your secretary or the receptionist for hours.
● Keep them away from hazardous environments. Unless you're going to keep them under constant supervision, avoid the factory floor and never let them drive the forklift!
● Make it fun. You don't want them to think your life is spent in a dreary office doing mind numbing drudgery. Or maybe you want their pity?
Friday, March 5, 2010
Grieving about personal grievances
Kate Wilkinson, Minister of Labour, has announced a review of the part of the Employment Relations Act which deals with personal grievances. It's a root and branch review with the intention of examining, amongst other things, whether the system strikes a fair balance between employers and employees, imposes unnecessary costs or obligations on employers and employees, and is efficient and effective.
Any business which has had to deal with a personal grievance should log on to the DoL's website (at http://www.dol.govt.nz/consultation/personal-grievance) and give their views. This is a rare opportunity to have a say and you only have until 31 March to do so.
For my two pennies worth, it may be trite to say it but prevention is better than cure. If employers had access to better guidance from the DoL about how to hire the right people and then manage them effectively, most personal grievances would never arise, and the business would benefit in a host of other ways into the bargain.
Oh, and another thing. In the UK there is a system where representatives personally face wasted costs orders as a result of any "improper, unreasonable or negligent act or omission". This applies to any representative, not just lawyers, except those not acting for profit. I suspect that a similar threat in New Zealand would help rein in the representatives who encourage their clients to pursue hopeless claims against their employers just to force the payment of a sum of money to make the problem go away.
If you are an employer who would like to participate in the consultation, and would also like to hear the views of other employers in Canterbury, why not come to the Think Tank discussion meeting at GTR's offices at 96 Oxford Terrace, Christchurch on Monday 22 March between 12.30 and 2pm. Just email david.appleton@gtrlaw.co.nz to let us know you're coming. We'll collate all the views expressed at the meeting and submit them to the Department of Labour on your behalf, on a no names basis.
Any business which has had to deal with a personal grievance should log on to the DoL's website (at http://www.dol.govt.nz/consultation/personal-grievance) and give their views. This is a rare opportunity to have a say and you only have until 31 March to do so.
For my two pennies worth, it may be trite to say it but prevention is better than cure. If employers had access to better guidance from the DoL about how to hire the right people and then manage them effectively, most personal grievances would never arise, and the business would benefit in a host of other ways into the bargain.
Oh, and another thing. In the UK there is a system where representatives personally face wasted costs orders as a result of any "improper, unreasonable or negligent act or omission". This applies to any representative, not just lawyers, except those not acting for profit. I suspect that a similar threat in New Zealand would help rein in the representatives who encourage their clients to pursue hopeless claims against their employers just to force the payment of a sum of money to make the problem go away.
If you are an employer who would like to participate in the consultation, and would also like to hear the views of other employers in Canterbury, why not come to the Think Tank discussion meeting at GTR's offices at 96 Oxford Terrace, Christchurch on Monday 22 March between 12.30 and 2pm. Just email david.appleton@gtrlaw.co.nz to let us know you're coming. We'll collate all the views expressed at the meeting and submit them to the Department of Labour on your behalf, on a no names basis.
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