Bosses behaving badly

20:28, Jun 06 2013

Most people in their working lives have experienced employers behaving badly.

I once had a boss who would leave abusive notes on staff members' chairs, and who thought nothing of firing pregnant people.

At another workplace the team watched in amazement as a new person was hired for the exact same role as an existing employee who hadn't - until then - expressed any intention of leaving.

That stunt never made it to any kind of hearing, because the employer knew it was in the wrong and paid the worker out.

This week the Employers and Manufacturers Association (EMA) lamented the employers' win rate in its annual analysis of personal grievance cases heard by the Employment Relations Authority.

In 2012 over two-thirds (or 245 out of 366) went the way of employees, up 13 per cent on 2011.

Employers did particularly badly in performance-related cases, where 85 per cent went in favour of the worker.

Employees whose performance is erratic are difficult to manage, and "in the end frustrated employers often call time on them", EMA manager of employment services David Lowe complained.

The EMA uses these figures to call for an extension of the current 90-day trial employment period to 180 days, arguing three months is not enough time to uncover a poor attitude to work.

The point that seems to escape the EMA is that the cases which come before the authority are a tiny fraction of the true number of workplace rows, many of which end up with the employer throwing a few thousand dollars at it to make it go away.

New Zealand industries are small and workers know that to take a personal grievance case is to permanently queer one's employment pitch. Therefore it is fair to assume that those who do take formal action have a well-founded complaint.

There are the try-hards and the professional whingers, of course. But employers can do really dumb things. Take the case of Turners & Growers storeman Robert Graham.

For nine years Graham worked for the produce distributor without incident. Then in 2011 he received two written warnings, one for signing off on a pallet of limes which was six boxes short and the other for miscounting grapefruit.

Graham was a diabetic, and in January 2012 was caught dozing off as he rested on his forklift. Despite explaining to his manager that he felt unwell, he was sacked for misconduct.

Graham cried when he was dismissed, and told the Employment Relations Authority (ERA) that his work brought him a great deal of satisfaction. Because of his age and health he felt he had few other opportunities and was left robbed of any purpose.

Sadly Bob Graham died a few months later.

Even Turners & Growers conceded that the storeman wasn't grabbing a sneaky 40 winks, nor was it the result of anything like too much partying. The ERA found that a fair and reasonable employer would have placed weight on Graham's explanation that he was ill. It ordered the company to pay his estate three months' wages and $12,000 compensation for unjustified dismissal.

Turners & Growers had "adequate resources and human resource advisers" to have handled the matter better, it noted. Which just goes to show that even large employers, for all their bells and whistles, are not managing the employment relationship well in many instances.

Auckland University law expert Bill Hodge commented recently that amendments upon amendments to the employment legislation are making it hopelessly complex and creating traps for businesses as they struggle to stay on top of it.

Rather than keeping score in the employment courts or demanding more concessions, employer groups might do better putting their efforts into educating their membership and lobbying Wellington for some streamlining of the existing rules.

* Maria Slade is morning editor at the Fairfax Business Bureau.