OPINION: The term "false friends" in linguistics refers to words that sound very similar in two languages, yet have significantly different meanings.
An example is the English word "constipation", which refers to difficulties with going to the toilet, whereas the Spanish "constipado" means to have a cold. Both refer to being blocked up, but at completely different ends of the body!
Legal jargon, even in one's native tongue, can contain quite a number of these false friends where the everyday meaning is quite different from the legal definition. The legal convention of referring to the lawyer on the other side as "my learned friend" in court when you may actually think he is a complete numpty and would cross the street to avoid interacting, springs to mind.
Employment law is no exception and contains quite a number of legal false friends, which can soon become true enemies for the unwary employer.
One example is the concept of "summary (or instant) dismissal". In everyday language, summary or instant in temporal terms implies "on the spot". Employers are often dismayed to discover that telling someone they are dismissed at the same time they are caught in an act that would definitely warrant dismissal, is almost a guaranteed loss if a personal grievance is raised for unjustified dismissal.
Summary dismissal in employment law means a dismissal without the required notice for termination contained in an employment agreement. However, before someone can be summarily dismissed, a full and fair investigation into the conduct needs to be held and that is unlikely to take less than three to five days because the employee needs to be given sufficient time to respond to the allegations.
Only after a full and fair investigation has been completed can an employer make the decision to summarily dismiss, and that can be effective from the date the final decision to dismiss is conveyed to the employee (not the date the conduct happened on).
Another false friend is the term "abandonment". A court is very unlikely to consider an employee skiving off two hours before the end of the day without permission, guilty of abandonment.
In general, abandonment involves an absence from work without contact, authorisation or reasonable excuse for a period of three or more days. The good- faith obligations of the Employment Relations Act require an employer to have made reasonable attempts to contact the employee during that time.
Whilst there is no set definition of a "reasonable excuse", employers should be prepared to accept being in a coma or being kidnapped and locked in a cupboard as reasonable excuses for failing to show or contact an employer. Other excuses need to be evaluated on a case-by-case basis.
In an age when an entire library is only a Google search away, employers are advised at minimum to check what a term refers to in New Zealand legalese or to contact their lawyer before making any rash decisions.
Erin Burke is a senior solicitor with the Employers and Manufacturers Association (Northern) Incorporated and is based in Hamilton. She has lectured in employment law at the Department of Law, University of Waikato, and can be contacted at: email@example.com
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