Friday, March 14, 2014

Bitten in the bum by the Human Rights Act

(First published in the Nelson Mail and Manawatu Standard, March 12.)
SURVEYS consistently show that New Zealand is one of the easiest countries in the world in which to do business. But I wonder if the researchers take into account the difficulties of sacking unsatisfactory employees, and the way the dice appear loaded against companies accused of wrongful dismissal.

Published reports suggest that any employer taken to the Employment Relations Authority by a disaffected ex-employee is on a hiding to nothing. No matter how outrageously the sacked worker has behaved, he or she is usually held to have been wronged because of some perceived procedural failure – often minor – by the employer.

The focus always seems to be on the process rather than the substantive issue that led to the sacking. This leads to some seriously wonky and unfair outcomes.

The ERA is so endlessly inventive in its efforts to identify procedural flaws that employers must now fear that it doesn’t matter how carefully they navigate the minefield laid for them. The authority will come up with some hitherto unidentified requirement that renders the dismissal unjustified, even if it means overlooking the reason for the sacking.

The obvious lesson is that it’s easier for an employer to put up with a lazy, dishonest or unreliable worker than to risk the humiliation of losing an employment case and being landed with an inflated penalty.

The prospect of an employer winning a case before the Human Rights Review Tribunal is equally bleak, judging by the $27,000 penalty recently imposed on meat processing company Affco.

The employee in question wasn’t prepared to work on Saturdays – his Sabbath – because of his religious beliefs, but the tribunal’s decision indicates he didn’t make this known when the company employed him.

Even when given the opportunity to state his religious objections to Saturday work, he didn’t. On the contrary, he said he was willing to work overtime, which the company not unreasonably assumed would include Saturdays.

When the company found out his religion forbade him to work on Saturdays, he was told to go. Had he declared his unavailability on Saturdays, Affco said, he would not have been employed in the first place.

Despite this, the tribunal found that the man was the victim of religious discrimination. Affco was held to be at fault for not explaining that he might be called on to do Saturday work.

Is it reasonable, I wonder, to expect a company with 3000 employees of multiple religions, and operating in an industry where there is intense pressure to process livestock at peak periods, to adapt its roster to suit the religious beliefs of an individual employee? I suspect most people would say no.

The company told the tribunal that, commercially, it was not possible to accommodate someone unable to work on Saturday. Clearly, this cut no ice.

Reading the evidence, it’s clear some disputed details could have been interpreted either in favour of the company or the employee.  The tribunal gives the impression that it was over-eager to opt for the latter.

It forgave the plaintiff for not revealing that he wouldn’t work on Saturday, but it didn’t excuse the company for not making it clear he might be required to (although Affco disputed failing to do that).

The plaintiff was “humble, modest and diffident”. On the other hand, the key witness for the company, the production manager who did the hiring, was “dogmatic”, “inflexible” and possessed of “tunnel vision”.

There was implied criticism of the production manager for not being aware of the company’s obligations under the Human Rights Act. Presumably, then, any manager placed in a hiring and firing position should be required to have a law degree, or at least a working knowledge of the HRA, the Employment Relations Act and all the other miscellaneous statutes that might jump up and bite a company in the bum if a disaffected ex-employee decides to take a personal grievance case.

But the tribunal had that covered. It ordered that to “assist” Affco – note the patronising language – the company must implement a training programme focused on its duties under the Human Rights Act.

Memo to the Human Rights Review Tribunal: this is a meat processing company we’re talking about. Its business is killing livestock and selling meat, thereby creating jobs and prosperity. Ordering it to provide human rights courses because one man’s religious rights were supposedly breached might provide officious tribunals with a thrilling sense of power, but it’s an expensive distraction from what Affco needs to be doing.

Running a large, complex business and keeping people employed, especially during a global economic crisis (this happened in 2010), is demanding enough.

Doing it knowing that your actions may be later be judged by a lofty panel of second-guessers, eager to wag their fingers in your face and hold you to account for not giving due weight to the Human Rights Act, must make it damned near impossible.

Then there’s the separate issue of the penalty imposed: $12,118 for loss of wages and a staggering $15,000 for “humiliation”. For heaven’s sake – the man was employed as a casual and worked there for only a few days. The damages award can only be seen as punitive: an attempt to make an example of Affco for not showing sufficient religious sensitivity.

The plaintiff initially sought $2000 in damages for humiliation. Perhaps he got a whiff of the way things were going at the hearing, because he subsequently revised his claim (humbly and modestly, no doubt) to $15,000, which was granted in full.

Naturally the tribunal was able to cite a vast body of statute law and judicial precedent as support for its finding. That’s part of the problem. People running businesses are governed by a constantly proliferating thicket of employment and human rights law that most of them are unaware of, but which can trip them up at any time.

Obviously we need employment laws to protect workers from exploitative and unscrupulous bosses. It’s a matter of striking a fair and realistic balance between the rights of employees and the right of employers to conduct their business efficiently and profitably – thus providing jobs and keeping the economy ticking over – without being unreasonably obstructed or punished for not measuring up to some arbitrary notion of human rights.

Judging by this tribunal’s decision, we haven’t got the balance right.


1 comment:

Brendan McNeill said...


This has been a 'pet' topic of mine now for some time. As an employer, you are very conscious of how these things play out, and make *very* certian you follow due process when managing someone out of your business.

Even then, as you point out, there is really no protection from this State funded stupidity.

Most employers are very sensitive around what kind of questions can, and cannot be asked at an interview, religion being one of them.

Just imagine if you refused to hire someone because they were (say) an observant Muslim or an orthodox Jew.

We made consessions to one Muslim employee because he wanted reduced work hours when fasting during the entire month of Ramadan, and accommodated his desire to leave early for prayers.

Can you imagine the outcome if we had been less cooperative, and they had taken our reluctance to accommodate their request as constructive dismissal on religious grounds?

With the possible exception of limited health and safety regulations, there is no justification for State intervention in employer / employee relationships.

We are all adults here.