Elegantly simple – untying the red tape

Employers often bemoan the difficulties of disciplining and dismissing staff. It’s all procedure over form they say; you have to jump through heaps of hoops, no matter how bad the behaviour of the employee. If you get it wrong, you’re stuffed.

Whilst it does often look like that, the law itself in New Zealand does not demand that employers must ritualistically follow esoteric and empty procedures as if they were magic spells. Some Employment Relations Authority determinations may seem like that, but the law doesn’t demand it. All the law requires is a balanced process that’s fair to the employee.

And to try and prove it, we thought we’d boil down to their essence the key elements of fairness in disciplinary meetings. Here are our golden roles.

Keep the employee informed

1 Employees are not mind readers – it may be crystal clear to you how they have transgressed, but still, spell out what it is they are accused of and what evidence you have. You should never ambush an employee in a meeting.

2 Warn the employee in the letter what the worse outcome may be. If it could be dismissal, then say so. That way, the employee will take the meeting seriously.

Gather the facts

3 There are two sides to every story – always let the employee have his or her say on each allegation and each piece of evidence.

4 Don’t jump to conclusions. Gather all the key relevant facts before making a decision. You don’t have to be an investigative detective, but don’t leave obvious gaps unplugged.

5 Consider what the employee knew – did they even know that their actions would be seen as wrong doing? What could they be expected to know?

Who to believe?

6 If there is a straight conflict of evidence, you only have to weigh the evidence and decide what is more likely or not to be true. You don’t have to be convinced beyond all reasonable doubt. On the other hand, you must weigh the evidence fairly, and to be able to explain how you reached your decision.

The sanction to impose

7 Put things in perspective. You may be infuriated because an employee has done something wrong, but is it so bad that they have to lose their job over it? Stepping back and trying to view how an objective outsider would view the facts always helps.

8 Was the bad behaviour or failing so serious that your trust and confidence has broken down irretrievably? If not, a warning is often enough, especially if the employee has a long, unblemished record.

9 Are there any mitigating circumstances that led to the bad behaviour or failing? Was the employee perhaps not herself because of personal issues? Can you be confident it won’t be repeated?

Create a paper trail

10 Always confirm all major steps in writing, and keep a note of all the salient points that were discussed in each meeting.

We’re not suggesting that you can never fire someone of course, but even if you catch the employee with his hand in the till so to speak, you do have to follow these basic rules, and to be able to prove you did. Just as we’d expect a fair trial in a court of law, the law expects employees to get a fair hearing.

Bully for us

The Press reports that "Kiwis [are the] worst in the world for bullying". (www.stuff.co.nz/the-press/business/3583645/New-Zealands-office-bullies). Obviously, in reality, this claim is impossible to verify scientifically, but the research quoted in the Press piece suggests that "negative acts in the workplace" happen rather too often, with 17.8% of respondents saying that they have been victims. Do we have a rampant culture of bullying in New Zealand or are workers too soft and complain too much?

The answer is probably a complex picture which has elements of both tendencies. On the one hand, New Zealand has a huge number of small businesses where bosses and workers interact closely on a day to day basis. That causes stresses to build up without the safety valve of trained professional HR practitioners to take the heat out of situations. Harsh words are exchanged and someone (be it worker or boss) feels put out. In a way, that's life, and not much can be done about it. (Save that kids could be taught early on in schools how to manage anger and frustration better, but this is a blog about employment law, not social engineering). So, the large number of small businesses probably mean there are more workplace scraps.

On the other hand, workers, at least, do have an easy remedy. They can bring a personal grievance about any disadvantage suffered at work. Many employers feel they can do so too easily, and that the system's too much in the workers' favour. Does the system encourage whinging from softies? Maybe, but the alternative is to remove the right to grieve about issues which may genuinely be the cause for great distress to employees.

In the UK, employees cannot bring formal complaints about low level bullying unless it is based on discrimination. There have long been calls for a change in the law but, so far, no UK government has had the political will to do so. Still, discrimination claims are much more common in the UK than in New Zealand, which is probably a function of the fact that there is no easy way to complain of bullying and the further fact that employees need a year's continuous service with an employer before they can sue for unfair dismissal.

So, what can be done about the apparent "bully culture" in NZ? Basically, education. If employers and employees were taught to communicate with one another about nascent problems earlier, before they got out of hand, many spats would never arise. This duty to communicate is already enshrined in law by way of the obligation of good faith in the Employment Relations Act, but some educational support from the DoL and Mediation Services would not go amiss.

Lots of people posted comments on the Stuff website following the "Kiwis are bullies" article saying that workers should just "harden up". We don't want to encourage whingers, but we can't agree. Bullying affects staff morale, productivity, staff turn-over and the bottom line. At the end of the day, if we all "play nice", we'll probably end up healthier and wealthier.