'You're fired!' just doesn't cut it in NZ, writes Steve Hart
KEY POINTS:
Employment lawyer Michael Smyth says too many firms are hiring the wrong people because their job ads are full of unnecessary jargon.
Instead of describing a vacancy so they attract the person they really need, he says some employers are plagiarising chunks from other people's adverts, mixing it up with a few overused cliches and then bemoaning the fact the "passionate and dynamic individual" they've hired doesn't fit in with the firm's "supportive team environment".
And Smyth says firms are getting into trouble when they decide to remove the bad hire. He is certain that when it comes to staff not working out as expected, the problem can - in many cases - be traced back to the recruitment advertisement.
He devotes a whole chapter to getting the advert right in his new book, Employed But Not Engaged, written over the past 12 months.
"When I wrote the book, I thought I really needed to include a section on recruitment because the whole book is designed to help small business owners avoid getting into this problem," says Smyth.
"If you leave the recruitment side out of a book on employment law then it would leave a huge hole in the process."
The book looks at the employee/employer relationship as though it is a personal one and could be described as a marriage guidance book for managers and staff.
Smyth is a barrister who worked in Auckland law firm Buddle Findlay's employment division after arriving from Britain in 2001 on what he thought would be a one-year jaunt. But his plan to return to London slipped away as he got to enjoy New Zealand's way of life.
He now runs his own legal practice in the areas of employment and sport, helping people with staffing problems and athletes dealing with issues such as drug test results and selection decisions. He markets himself as The Approachable Lawyer and does his best to take the stuffiness out of employment law.
Smyth says he wrote the 144-page paperback because of the number of cases he worked on that were down to an employer slipping up during the process of dismissing a member of staff. And it is the minor oversights, he says, that leave employers open to legal challenges from staff, followed by the expense of mediation and employment court hearings.
"It just struck me that if employers had gone through the [dismissal] process correctly then they wouldn't leave themselves open to problems."
Another common failing of employers, Smyth says, is heading into the disciplinary process having already decided on the desired outcome.
"The difficulty is that once you have decided to terminate someone from their employment - before you have gone through the process - then it becomes very obvious. While the law doesn't mean you have to go through a process that's like painting by numbers, there is a series of steps you have to take.
"The whole process is based on both parties acting in good faith. But a lot of employers forget this, come to a decision too early, and then get in such a rush to get to the end game that they forget the employee has rights too. And this can lead to an employee raising a personal grievance."
He hopes his self-published book will give managers the edge when understanding the rights of their staff, their own obligations as employers and the correct process for letting staff go without ending up in court.
"I think there is a certain lack of knowledge out there - in the business world - about what the correct process is
... there is a perception in New Zealand that you can't get rid of anybody without having to pay some form of compensation and - as I say in the book - that is not true at all. One reason for writing the book was to debunk that myth."
Smyth also says he wrote Employed But Not Engaged to help give employers confidence when disciplining staff members who are not performing to expectations.
"And it could be that employers that follow the process correctly actually turn a member of staff around so that they become an asset to the business."
Smyth is the first to admit that when it comes to reading up on employment law, there are plenty of sources available - including the Department of Labour's own site. But he says his book is designed to be user-friendly.
"Employed But Not Engaged is not a dry, boring law book. What I have done is to bring employment law down to a very easy to understand format.
"Throughout the book I draw analogies between employment relationships and personal relationships. And by drawing that analogy it will help people pick the book up and read it.
"People can go to the Department of Labour website - but they might only go there when they have a problem. By making employment law an interesting read, I'm hoping people will enjoy my book and educate themselves at the same time."
And the cost of this education could be cheap compared to what Smyth says is the average award to disgruntled employees at mediation. He says staff that win their claim can be awarded up to three month's wages and up to $15,000 for hurt and humiliation - although he says these awards average out at around $6000.
On top of that is the time and expense it costs an employer to defend a case, attend hearings and pay their lawyer. And if a case reaches the Employment Court, there's even more expense, time and perhaps workplace disruption if colleagues are asked to attend court as witnesses.
Smyth says employment law has levelled the legal playing field in what he calls the "master and servant relationship".
"The perception has always been that the employer holds all the rights and the employee has very little.
"Employment legislation is designed to level the playing field and give the employee a lot more rights when it comes to negotiating contracts and termination.
"But the general feeling is that the employee has ended up with more rights, and I can certainly see that argument - especially around the area of termination.
"The employer has to jump through lots of hoops but the employee can call up, resign and not return to work - leaving the employer in a lot of strife. There is very little sanction on an employee when they break the contract."
Smyth says New Zealand is in line with Britain when it comes to employment law.
"Australia has gone the other way where the law is in favour of the employer. But where we are going to go now is a little bit tricky.
"I think National will tinker with our employment laws, but I don't think we'll see a large-scale reform of employment legislation.
"They will probably do something with union law, but in terms of small- to medium-sized business, where my book is focused, I think there will be a change as to when an employee can bring a personal grievance."
Smyth has never published a book before and says the whole process has opened his eyes to how easy it can be. And it has given him second thoughts about working with a publisher.
"I wrote the book figuring I'd sell it as a PDF from my website, but the whole thing grew and I decided to self-publish the book. Having gone through that process, I feel very confident about my next one."
Employed But Not Engaged costs $35.
ON THE WEB:
Download the first chapter of Michael Smyth's book for free at www.employedbutnotengaged.com
Contact Steve Hart at www.SteveHart.co.nz
