Opinion & Analysis
OPINION: You may recall a recent story about an Auckland developer's intention to design an apartment complex exclusively for baby boomers.
The advertising promoted that the complex was looking for residents "who are still planning to climb Kilimanjaro, write their autobiography, party with the [Rolling] Stones, swim the Cook Strait or create a new startup".
Sound like heaven? Unfortunately, there's a fairly strong possibility that enforcing this strict "boomers" selection policy would amount to unlawful age discrimination. So, while this haven might never eventuate, it does raise interesting issues about age discrimination generally.
Managing "career twilight" can be a challenge. Older employees often hold valuable knowledge vital to the smooth operation of a business and which can be difficult to identify and pass on, but they can also struggle to keep up with the pace of change, and might not recognise when it is time to move on.
Employers often get it wrong when it comes to discussing transition options, and the risk of constructive dismissal requires careful management.
Take, for instance, events at the Bealey Hotel in Arthur's Pass.
Frances Newman was an employee of over 20 years' standing. One Friday in June 2012, her employer, Debbie Dekker, discovered that customers were dissatisfied following the lunch service that Newman managed. Lunch had finished very early - apparently because Newman had falsely claimed that there was no more soup.
Dekker was angry. But she was also conscious that a time-consuming and risk-filled disciplinary process might be avoided if Newman was intending to retire soon. So, she quizzed Newman accordingly - did she really want to work there? She obviously didn't like serving people. Dekker suggested retirement and asked Newman to make clear what her intentions were in that regard within two weeks.
At this point, things went pear-shaped. Newman - who had no intention of retiring - swore, claimed that she would attempt to ruin the business because of how she'd been treated, and left in a flurry of outrage. The following day, Dekker sent an email to the local community, claiming that Newman was intending to start a smear campaign.
Newman later claimed she had been constructively dismissed because Dekker's suggestion that she retire was a breach of the employer's duty towards her. Dekker's view was that Newman had chosen her own fate by not returning to work, even after several conciliatory emails.
The Employment Relations Authority agreed with Newman. Although Dekker had never intended to dismiss Newman, Newman was, equally, not actually intending to retire. She was also entitled to protection from age discrimination. She had walked off her shift only because the suggestion that she do so had been raised by her employer. That made it the hotel's problem, and the hotel's responsibility to fix things.
Dekker knew that Newman believed that she had been sacked. Rather than taking time to calm down and reassess matters, Dekker instead dropped a very public and extremely unflattering email bombshell - hardly good faith behaviour.
At that point, the damage was done. Newman sought compensation from the Employment Relations Authority for the way she had been treated, and was awarded $3000 in compensation, reduced from $4000 to take into account her dereliction of duty in relation to the lunch service and her rude response to the suggestion of retirement.
The award might have been enough to give Newman a short time away to think about her future, but was hardly enough to provide her with a comfortable retirement.
Good employment relationships can sour when employees feel forced into leaving before they are ready, or that the employer to whom they have given so much is tiring of them. That is not to say that employers cannot broach the subject of an employee's career intentions.
However, such discussions need to be transparent and non-threatening. The intent should be to identify and cater for the various possibilities in succession and general business planning.
And don't forget the rest of your workforce: just like swanky apartment living, discussion about personal plans and succession options shouldn't be reserved for the older among us. Other staff members' plans and goals are just as relevant, and, like the lunch service at the Bealey Hotel, shouldn't be neglected.
- Susan Hornsby-Geluk, Partner, Dundas Street Employment Lawyers, www.dundasstreet.co.nz
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