Sacked Air NZ worker wins under new rules

A former Air New Zealand worker has been awarded $5000 by the Employment Court in a case opponents of labour law changes say will make it harder to sack workers.

In one of the first cases to come before the Employment Court since amendments to the Employment Relations Act in 2004, Judge Coral Shaw found that Air New Zealand had acted inappropriately in firing worker Andrea Hudson in 2004.

In her decision, Judge Shaw found serious flaws in Air NZ's investigation of Ms Hudson's performance, which included complaints laid against her for poor service and her admitting she pushed a co-worker during a dispute.

Judge Shaw concluded that Air NZ's investigation into Ms Hudson's performance "was not what a fair and reasonable employer would have done in the circumstances".

She said the amendment changed how employers dealt with bad workers, shifting the focus from what the individual employer thinks is the best way to handle the situation, to what a "fair and reasonable" employer would do.

Judge Shaw said a fair process might have resulted in a justified dismissal but Air NZ failed to talk to all the relevant parties involved, thereby failing "properly to weigh all the circumstances under which the alleged misconduct occurred".

She awarded Ms Hudson $5000, but said it would be impractical to ask Air NZ to give her her job back, given that other airline staff had refused to work with her. The judge upheld a ruling by the Employment Relations Authority which found Ms Hudson had not been guilty of serious misconduct. The authority had ordered she be reinstated.

Employment lawyer John Hannan said the verdict confirmed to many in the industry how the amendment would affect the legal process.

"It confirms what Parliament intended, that it would put a curb on the range of responses an employer could take on [how to handle] poor employees. It's narrowed the employer actions regarded as acceptable.

"Most employment lawyers will be advising their employer clients to act very cautiously when it comes to dismissing or taking disciplinary action."

Depending on your point of view, the precedent either made the disciplinary process more robust or created an imbalance in favour of employers, he said.

Employers and Manufacturers Association spokesman David Lowe was of the latter opinion. "Before the 2004 changes, employers had a range of options within which they could choose what was appropriate.

"Now employers not only have to consider the right thing for their business, but they have to try and second-guess what the court might think."

He questioned how an objective standard was possible when the court had so many judges.

But national secretary of the Engineering, Printing and Manufacturing Union, Andrew Little, said he was confident any difference in judges' opinions would be minimal.

"And if it was left up to what a particular employer thought, there'd be a much more varying standard. There'd be no certainty.

"Now it's not just what the employer thinks, it's also what somebody standing apart from the employer and employee thinks.

"Does it make it harder for employers? No. It makes it clear that the standard any employer is expected to follow is an objective and reasonable standard."

Wayne Mapp, National's employment spokesman, said the effect of the amendment unfairly threw further weight behind workers at the expense of employers.