With an estimated 6000 job cuts across the public sector, it’s unsurprising the fast and sweeping restructures have given rise to Employment Relations Authority proceedings. This year, we’ve already seen the Public Service Association (PSA) filing proceedings against the Ministry of Education and Oranga Tamaraki.
Losing your job is hideous, especially in this cold financial climate, but research suggests restructuring and redundancies also impact workplace morale, trust and productivity.
Coined as “survivor’s guilt” in the 1960s, people who survive a redundancy or restructuring process have been shown to display feelings of guilt, fear, unfairness and burnout.
This fact was ignored when Finance Minister Nicola Willis announced the public sector would be reducing working-from-home “entitlements” last month.
Pointing to unsubstantiated evidence, Willis told reporters: “I’ve had public servants themselves, in private, raise with me their concern that widespread working from home has changed the culture of their organisation and that some employees, not all, but some, are taking advantage of it.”
Firstly, whose responsibility is it to create the “vibe” of a workplace, and who is it designed to benefit? Local and international research suggests flexible working or treating employees as people rather than cogs in a machine in fact improves productivity. What’s more, if the work is being completed, then what’s the issue?
As the “return to work” movement gains momentum internationally, you have to question whether the aim is to increase productivity or to regress back to dictatorship-style micromanagement. The “Me Boss, You Not” effect.
Flexible working is the default, actually
Contrary to popular belief, the request to work flexibly is an entitlement under Part 6AA of the ERA. Different rules apply to union and non-union workers, as collective agreements should address flexible working in theory.
For people on non-union contracts, employees have the right to make a written request to vary working arrangements, whether that’s hours, days or location. Interestingly, the reasons why you might be making a request are not a requirement. Your life, your business, or so the theory goes.
Employers are required to respond to requests within a month, and ideally as soon as possible. Those who decline a request must do so for genuine business reasons, which are detailed in the ERA.
This may include being unable to reorganise work among existing staff or recruiting additional staff, and working times might not align with the nature or requirements of the job. Flexible work could also be declined on the basis it could detrimentally impact performance and quality or create additional costs.
The section was introduced in 2007, but arguably it wasn’t really utilised before the pandemic. The data backs this up, with latest Census figures suggesting one in six people working from home, up nearly 60% since 2018.
The high cost of not playing by the rules
Under the ERA, employers who flatly deny flexible working requests could find themselves slapped with a penalty of $2000. There’s also the possibility actions could give rise to a personal grievance claim.
This brings me to this year’s Employment Relations Authority determination of Parker v Magnum Hire. After 12 years working for Magnum Hire, David Parker brought personal grievances relating to repeated, unreasonable and direct bullying and psychological abuse by the company’s director, which culminated in a diagnosis of post-traumatic stress disorder.
Parker also had a claim relating to a refusal to work from home. Following abdominal surgery, Parker made a request to work from home on the advice of a doctor. The answer was no. The authority found Magnum’s failure to follow any process, consult or consider alternatives amounted to a suspension.
Parker was awarded $5000 as a result. He was also awarded $50,000 for the bullying disadvantage grievance, $50,000 for constructive dismissal, lost wages, penalties, bonus entitlements, holiday pay, and interest. Costs were reserved. Notably, the director told NZME he intended to appeal the determination.
Compensation rising
The determination is important for two reasons. First, the remedies were arguably unprecedented and echoed the Employment Court’s recent shift in compensation levels.
In the 2023 case GF v Comptroller of the New Zealand Customs Service, Chief Judge Christina Inglis highlighted that compensation bands needed a revamp. Low-level loss or damage increased from $10,000 to $12,000, mid-level loss increased from $10,000-$40,000 to $12,000-$50,000, and high-level loss increased from $40,000 or more to $50,000.
Secondly, in this case, the working-from-home rejection was part of a bigger story relating to an imbalance of power and arguably an abuse of that power. The rules offer a bare minimum for all parties to abide by. Happy workers, happy workplace. Follow the rules, and everyone can save a world of financial pain in the process.
That is, of course, if the rules don’t change. In March, Workplace Relations Minister Brooke van Velden told the Auckland Business Chamber she plans to consider setting a high-income threshold where personal grievances can’t be pursued and to remove the eligibility for remedies if an employee is at fault. Let’s hope this doesn’t happen.
We may be seeing an erosion of employment rights, which sits uncomfortably given the unemployment rate is 4.6%, but there’s a silver lining insofar as we probably won’t see any shortage of legal work for employment lawyers.
