Criticism of the Employment Relations Act was unwarranted and incorrect, the chief judge of the employment court says in reply
KEY POINTS:
I write to correct some of the outdated and inaccurate shibboleths attributed to Tony Skelton of ACE Training in the article `Hard to get bad eggs poached' in the Career section of last week's paper.
The article read: "For employers who choose to go through the process outlined under the [Employment Relations] Act, Skelton says there is little room for error.
"If we as business owners don't follow the process correctly, irrespective of the reasons and the legitimacy of a disciplinary action, we are in default of the Act and we are going to get done for it," he says.
"From a small business owner's point of view, the business has absolutely no protection whatsoever ... It's a completely lopsided, unbalanced piece of legislation. It takes three months to go through the process and, if you slip up on one point, the Employment Court says you've stuffed up."
Employment law, based on International Labour Organisation Conventions, to which New Zealand is a signatory, has long required that employees who may be at risk of dismissal or disadvantage in employment be treated fairly and reasonably by their employers.
The courts have interpreted those obligations to include requirements for a fair and reasonable process that includes informing employees of issues and providing a reasonable opportunity to improve performance before the significant step of dismissal is undertaken.
What is required is not minute and pedantic scrutiny of procedure, in which any failure will give an employee remedies.
Rather, the law is that overall and substantial fairness and reasonableness in an employer's approach to questions of performance failure or misconduct in employment is the touchstone.
Since 2004, the Act has required that justification for a dismissal from, or disadvantage in, employment should be judged "by considering whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances".
Although the Act is in many respects employee-protection legislation, neither it nor its interpretation and application by the Employment Relations Authority or the Court is "completely lopsided" or "unbalanced" as Mr Skelton asserts.
Nor is Mr Skelton correct in suggesting that raising issues of poor work performance with employees incurs risks of "constructive dismissal".
Genuine concerns about work performance fairly conveyed with opportunities for improvement are unlikely to be interpreted by courts as the serious breaches by employers that constitute in law constructive dismissals.
The article does not refer to probationary periods in employment that are expressly recognised by the Act and may be entirely appropriate where there is some uncertainty about an employee's ability or willingness to perform the job.
Dealing with inadequate performance or other unsatisfactory employment issues is not a no-win legal minefield for employers, to be avoided only by buying off employees.
It is an area of employment relations in which, because of the potential consequences to employees, the law expects employers to meet standards of fairness and reasonableness in all the circumstances of any particular case.
