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| Around the traps - July 09 |
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Reflections from Chris Rowe on dealing with employment and other problems. Chris Rowe, Director of Corporate Dynamics Ltd is a Warkworth New Zealand based Employment Relations Advisor and Mediator. Since my last newsletter I have spent far too many hours in Labour Department mediations as advocate for either employer or employee. I say “far too long” because in every case there was an opportunity for the matter to have been dealt with earlier; and/or the employee was “pushing the envelope” in the personal grievance which led to the mediation. The end result was unnecessary cost and anguish for both parties. Of course hindsight is a wonderful thing, and my opening statement is intended to preface below some learning from recent cases I have been involved with, and to provide some legislative backing in the form of recent employment cases in the Employment Court. Is it possible to have too much detail in your employment agreement? As regular readers of this newsletter will know, I really enjoy the calls from clients who have employment agreements in place and signed by both parties! It always helps when problems arise. I do not normally include in employment agreements I write detail about how any disciplinary process will be instigated or followed. This is because the law provides that any process must be fair and reasonable, and every case is different. In some cases it would be fair and reasonable to issue a first and final warning. In others, it might be more appropriate to issue a verbal warning. Contrary to popular belief, there is no law which says you must issue any prescribed number or type of warnings for misconduct or poor performance. In my recent experience an employment agreement which spells out the process to be used in every case (e.g. a verbal warning, then a first written warning, then a second written warning) can bind an employer to a process which is completely inappropriate for the particular misdemeanour or behavioural problem exhibited. Employee advocates will often latch on to any perceived deficiency in a prescribed process (e.g. in an employment agreement) which might lead to a claim of unjustified dismissal. Even if that claim is not eventually proven, it can cost scarce dollars to defend the allegation. Recent Employment Court Case In Butcher v OCS Ltd CC8/08, the employee Plaintiff challenged a determination of the Employment Relations Authority that his summary dismissal for serious misconduct was justified. The question before the court was whether the employer was entitled to dismiss without any prior warning when the policy handbook required otherwise. The Court held that the issue was not whether or not an employer had properly followed every requirement of a promulgated policy document but whether, in all the circumstances at the time the dismissal occurred, the employer’s actions were what a fair and reasonable employer would have done. The challenge was dismissed. POOR PERFORMANCE If you are noticing a decline in an employee’s performance, it is important to address it early. The employee may not know that he/she is not meeting the required standard, and is entitled to be informed about deficiencies and what needs to be done to improve. A decline in performance can be a result of external factors, and may be related to the employee’s health. Whatever the cause, it is always best to raise it early. Discussions of this nature are never easy, and as employers you need to know that, however well you handle it, the employee will be anxious and often upset when you say you need to discuss issues related to employment. But that should not influence your decision to proceed, provided your process and manner of delivery is fair and reasonable. That process is to give the employee at least 24 hours notice of a meeting to discuss issues related to his/her performance. The employee must have an opportunity to have a support person or representative present at the meeting. Advice of the meeting should if possible be given orally and in writing (email is fine), and should state the purpose of the meeting. At the meeting, explain what the issues are, with examples, and give the employee the opportunity to respond either at the meeting or soon after. Only after considering the response should you make any decision about how to proceed. If performance (or any other employment issues) are left unaddressed, you run the risk of being deemed to have condoned the behaviour or poor performance. There is the added difficulty that the employer loses confidence in the employee, and this contributes to an uncomfortable working relationship at best. It is usually helpful for everyone if the employee brings a support person to any meetings. There are of course exceptions, for example when a representative chooses to take an unhelpful aggressive stance on behalf of an employee. If that happens, the employer can legitimately request the advocate abide by normal groundrules for meetings like common courtesy and constructive debate. Using a GPS Tracking System Employers who run fleets of vehicles increasingly find GPS a useful tool to manage their fleets more efficiently. GPS can deliver information on the best routes to take, monitor the time a driver works, and assist with speed compliance. The Privacy Commissioner advises that, as GPS involves monitoring where a driver is at any one time, it is important the employer has good policies to govern its use. For example, what happens outside work hours? If the employee has access to the vehicle for personal use, it may not be necessary to gather or use any GPS information. Any information relating to that non-work time will need to be handled very differently from the information gathered while the person is on the job. As with any collection of personal information, an employer must show that the collection of information is lawful, that it is necessary for the functions or activities of the business and that the information collected is stored securely. The employer must also inform employees prior to installation of any system why the information is being collected and what it will be used for. What is casual employment? In these difficult economic conditions, some employers prefer to offer casual employment. Whether or not the employment relationship is casual can affect entitlements. There is no definition of casual employment in the Employment Relations Act 2000, but a recent Employment Court case Sharon Lee v Minor Developments Ltd T/A Before Six Childcare Centre AC 52/08 spelt out the following characteristics which go to the heart of whether employment is casual: • Engagement is for short periods of time for specific purposes • Lack of regular work pattern or expectation of ongoing employment • Employment dependent on demand • No guarantee of work from 1 week to the next • Employment as and when needed • No obligation on employer to offer employment or on employee to accept • Employee engaged for a specific term of each period of employment The Courts have said that whether or not a person has been employed as a casual employee depends on the mutuality of the intention at the outset of employment and the nature of the work including its regularity, hours and the obligations on the employee. The best way of expressing mutual intention is to have an employment agreement. Yes, even for casuals. POSITIVE OUTCOMES Here are a few examples of very pragmatic resolutions from my recent work without Labour Dept involvement:
I was recently elected to Council of the Arbitrators’ and Mediators’ Institute of NZ (AMINZ). It seems appropriate to remind you that AMINZ offers a range of services to the public, as well as to its members. For example, it provides free assistance in finding a dispute resolution practitioner, and offers an appointment service for qualified professionals to conduct independent investigations. Check us out at www.aminz.org.nz Cheers! Chris Rowe Disclaimer: The information in this newsletter is to the best of the author's knowledge true and accurate, but does not constitute professional advice and should not be relied on as such. The Author will be pleased to comment on specific issues of concern to readers, and to offer appropriate advice. Chris Rowe is a Director of Corporate Dynamics Ltd; and is a Fellow (Mediation) and Member of the accredited Panel of Mediators for the Arbitrators' and Mediators' Institut of NZ. Inc. (AMINZ) |