'You're fired,' Kiwi-style

By STEVE HART

When billionaire Donald Trump lets a contestant go at the end of each episode of his TV show The Apprentice the last words he says before one of them heads for the street are: "You're fired".

The programme, screening on TV2, has spawned car stickers, posters and even a patent application by Trump featuring the 'you're fired' catchphrase.

But can managers working away from the lights, cameras and action that is reality TV get away with telling someone they are fired? Could Trump actually sack his staff with that gut-wrenching phrase at all?

"Yes," says careers expert Dr Marie Wilson. "It does happen in the US but it wouldn't be allowed in New Zealand.

"In the States people can be fired just like that in what is called an upper out system or employment at-will. In places such as law firms or universities where there are targets you can be 'let go' if the target is not met.

"The joke when I was working in the US was 'don't leave your desk for too long or you'll find its contents in a box when you come back'.

"Trump, and people like him in the States, can fire people quickly. But firms who want to be seen as responsible employers probably wouldn't do it.

"There is no job security in the US, but it does keep everyone on their toes."

Beverley Main, chief executive of the Human Resources Institute, which has more than 2200 members in New Zealand, says workers here are more likely to be asked to resign rather than be told to leave.

"The employee/employer relationship should never get to a point where a person is let go with anger. HR managers work on prevention and phrases such as 'you're fired' should not be used.

"I guess if the phrase is used it would be in the heat of the moment, perhaps by a manager who hasn't thought through the implications and legal ramifications."

But according to employment lawyer Jennifer Mills, of Bell Gully, managers sacking staff on the spot does happen here - quickly followed by a call to a lawyer to head off a complaint to the Employment Relations Service.

"On more than one occasion I have been asked to assist when due process has not been followed by an employer," says Mills. "Some people call us saying 'what have I done?' after firing someone. Work is then done to settle situations before they become a formal complaint.

"However, some companies make a judgment call on the cost of keeping someone on while going through due process against sacking them to move them on quickly and then accepting that they will have to pay compensation.

"Unfair dismissal can lead to compensation being paid for, among other things, hurt feelings."

Wilson says most of the requirements in New Zealand, when letting someone go, is about a fair process so people understand their failure to perform, have an opportunity to improve and, if not, for both sides to agree the employment relationship isn't working out. "It's then best to make the cut and offer support to help them get their next job. In New Zealand you can't get rid of people as easily as in the USA. There is a far greater emphasis on process.

"Rather than go through proper procedures some employers do all sorts of things to encourage people to leave. In the US, while the lack of job security seems quite harsh, I'm not sure the system is any worse than employers here who create situations that make people want to quit."

Underhanded ways of sacking people have included raising targets so they are unattainable, transferring people to known difficult projects and problem clients, cutting budgets so staff can't do their job with the resources available, and upsetting staff holiday plans with last minute 'must do' projects.

Human resources experts call it "performance managing out" and can involve building a reason for firing, even if the reason is spurious.

One HR manager said signs that a person was being managed out - or exited - included increased attention by managers, heavier workload, meetings about performance and raising time-keeping issues.

Wilson said: "There is something to be said for being quick and for staff not to feel like they are failing. Assuming there is support for the sacked person it's often better for them to leave and get it over with than to struggle on for months feeling like they are under attack. That doesn't mean not being open and procedurally fair, [but] it does mean dealing with problems quickly and honestly."

Rodney District Council's organisational development manager Nick Verreynne says its staff who are not performing well are given all the help they need to meet minimum performance expectations and if it comes to a parting of the ways then everything is done to ensure a dignified exit.

"We see that any disciplinary process not only meets legal compliance but also ensures our staff are treated fairly and that they perceive they are being treated fairly.

"When we invite staff to a meeting we agree a date that's suitable to them and actively encourage them to bring along a support person - it is in their best interest that they are comfortable at the meeting so they don't feel victimised."

The council's philosophy is that it expects its managers to deal with the symptoms of staffing problems and issues. For example, if someone is not performing it is more important to work with them to find out why and try to fix it. "No one wakes up in the morning and says 'I'm not going to perform today'. And we never pay non-performers to leave because that is unfair on the good performers," says Verreynne. "Non-performance can only be a symptom of a bigger problem so we try to uncover any underlying issues that need to be addressed."

And when someone leaves they are helped as much as possible; the council can refer them to an employee counselling service.

"Sometimes someone may be leaving after 10 or 15 years service and they haven't a clue about how to prepare a CV, so we offer help.

"Keeping in mind privacy obligations we ask departing staff what they would like their colleagues to know. Often they will want to say they are resigning and then we as managers will say the same thing.

"Sometimes people will have years of excellent service and we don't want one incident to spoil what has been achieved."

Verreynne says the council's philosophy to help staff departing under a cloud is not in a document you can pull off a shelf.

"It is something our managers subscribe to and promote across the organisation," he says. "We see it as part of our commitment to good faith."


How to handle misconduct

* Preliminary investigation

Question complainant and any witnesses to ascertain whether there are grounds for a disciplinary meeting. If there are grounds, proceed to the next step.

* Set up disciplinary meeting

Notify employee of the need for a disciplinary meeting. Give employee fair notice of meeting. Advise employee of particulars of concerns and possible consequences of process. Advise employee of right to representation.

* Disciplinary meeting

Meet with employee. Arrange a company witness to take notes of meeting. Explain allegations in detail and ask for employee's response. Allow employee an opportunity to respond to allegations. Listen to response.

* Decision

Carefully consider all facts and employee's response with an open mind. Decide on action to be taken.

* Inform employee

Inform employee in writing of conclusions reached and any disciplinary action to be taken. Any warning should make it clear that the employee's employment may be in jeopardy if targets/standards are not met in a certain timeframe.

* Possible disciplinary action

First breach - written warning.

Second breach - final written warning.

Third breach - dismissal.

The guidelines are subject to any company disciplinary procedures which may set out a different process. These guidelines have been prepared by Jennifer Mills, employment law specialist, in conjunction with the Human Resources Institute of New Zealand.