More on the sacked in hospital story
I blogged earlier today on the story of the boss who sacked one of his staff while recovering from a heart operation. A lot of people have actually defended the boss who did it. They seem ignorant of how one should handle a situation like this, so let me spell out how it should be handled.
First some important facts:
- It is not a choice between sacking someone and paying them a full wage while they recover. Once their sick leave entitlement is up, you can have them on unpaid leave.
- The employer made the decision with no consultation or discussion. He just turned up with the dismissal notice.
- The employer turned up to tell him, without even giving notice that he was coming in to discuss work issues- hence not giving the employee time to consider a response.
- The employer expressed a medical opinion which he was not qualified to express, and which conflcited with the actual doctor
Here’s what a far better, fairer and legal process might look like:
- Visit employee in hospital just to see how they are doing, after the operation.
- Visit employee again, and say that you are glad to see them recovering, they are missing you at work and consequential to that they need some idea of how they will be placed in terms of resuming work, and whether there will be restrictions on what they can do. Ask them to either allow their doctors to talk to you, or preferably to prepare a report on what is possible.
- Receive the report and consider it. Verify with the employee that they agree in terms of the timeframes mentioned, that this is the earliest they could return to work.
- Look for good faith options where the job can be held open, while they recover. Can other staff work more shifts. Can you get a temp. If they can be back in a month (for example) would a new employee even be able to start by then. Does the experience you will lose if you let that employee go make it worthwhile holding the role open.
- When you have formed an initial opinion, pop in and see them (and also put it in writing to the employee) and discuss options such as part-time work, whether other staff can cover. The employee may be able to propose an acceptable solution. Explain why you may be unable to keep a job open past a particular date.
- Make no decision on the spot. After the meeting give the employee time to make a formal response in writing if they want – make sure they have had full ability to have their point of view considered.
- Then after you have all the facts, and the employee has had the ability to make representations to you, make a decision.
Employment lawyers might be able to add some extra steps to the above, but regardless the way it was done with a pre-determination based on assumptions not facts and with zero employee input is just wrong wrong wrong.
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February 23rd, 2008 at 6:14 pm
Thanks for the clarification. OK, this guy WAS wrong wrong wrong.
I still stand by the broader analysis I made of employment law in NZ on the earlier thread.
And note: if you’re wrong wrong wrong, and you’re an employer, you and your business are TOAST. End of b. story.
If you are ANYBODY ELSE, including a violent criminal, you’ll get aid, a plea of mitigating circumstances……etc
Is something wrong with this picture?
February 23rd, 2008 at 6:16 pm
By the way, I’m not an employer and intend never to be, unless there are some basic changes to the law to protect ME. Or I may take my skills overseas, and end up employing and training people then.
February 23rd, 2008 at 6:36 pm
There are steps to follow ,PhilBest, if you dont follow these simple steps and rules (ie verbal or written),you get slapped,HARD , ps are you going to commie china to work to use your future managment skills there they probably would put the guy down with a bullet or injection , NO EMPLOYMENT RULES THERE,, ,,,
February 23rd, 2008 at 6:36 pm
Agreed re missing a few steps – but I think the point that was missed by the media in the 1st place was that it IS grounds for dismissal.
The story implied it wasn’t grounds (at at least that it wasn’t fair if a person is sick that they are dismissed)
But agreed re process – a few extra steps could have made the whole thing less of an issue.
February 23rd, 2008 at 7:35 pm
The hospital should sue the employer for trespass. While the employer had implied licence to enter the hospital to visit the employee, it would be reasonable to presume that the hospital would not have allowed the employer on to the premises for the purposes of dismissing from employment a person who was there as a patient. The nearest relevant case concerned a TV3 journalist who entered a property with a view of holding a confrontational interview which was filmed by a cameraman from the street. The court held that the journalist had no implied licence to enter the property in such circumstances, so could be sued for trespass.
February 23rd, 2008 at 8:52 pm
Should have explained that in the first post imo…
February 23rd, 2008 at 9:50 pm
Good analysis. While the employer thought he was in a bad position, he’s clearly made it much, much worse.
People forget that as a possibility far too often…
February 24th, 2008 at 12:14 am
Employer can be found at chch@patchrubber.co.nz
February 24th, 2008 at 7:49 am
The process you’ve outlined DPF is very similar to the one followed in regard to an employee at my workplace last year. She had to have very serious surgery and was off work for 4 months in recovery. Following discussions with her and other co-workers her job was covered by existing employees working extra shifts and hiring a temp over this period. She is now back at work as normal and the temp that was hired has now been taken on full time as the business has expanded. Everyone won really. All it takes is a bit of effort, thought and respect. I might add my workplace is also thankfully free of any Unions.
February 24th, 2008 at 8:18 am
Whats wrong with unions,Richard Hurst, what if your firm was run by arseholes like the above idiot,YOU COULD BE OUT OF A JOB, firms rarely give a shit about their employees (if you dont like it ,you can always leave)
its only the lack of skilled workers which gives you job security.PS with the flood of chiness coming in under the free trade deal with slave worker china (the witches dream) your job security could disappear Richard
February 24th, 2008 at 8:36 am
There’s nothing wrong with Unions John, its just I’ve found I have never, either here in NZ or working overseas, ever needed them but if people want to freely join them and pay the Union fees- fair enough that’s their business but they don’t speak for me.
John, I can’t go into details about my work because I don’t want some wacko turning up there because of what I have written here but I can tell you my job security is not because of a lack of skilled workers in NZ and would never be endangered by ’slave workers’ from China. Thanks for the ignorant insulting assumption anyway.
And its true: if someone doesn’t like a particular job, they can always, re-train part-time for a new one and then leave or simply find another job, not always easy for many but it is possible with effort. Lastly if my firm was run by arseholes I would have left by now and found a new job.
February 24th, 2008 at 9:40 am
THAT is what is wrong with Unions, john. Your claims that employers don’t give a shit about employees. Its this kind of crap opinion that gives unions a bad name, in that it suggests that they have zero interest in trying to work constructively with employers. In my experience, employers care more about their employees than the local union reps do!
February 24th, 2008 at 11:04 am
Your call Richard, good post ,i appreciate your views but dont need to agree with them ( that tired old road)SPAM um TUI AD (YER RIGHT ) till the shit hits the fan.How big is your company???spam does your boss know you personally and why should my comment reflect on my Union the EPMU (printing)
February 24th, 2008 at 11:37 am
john – Lunacy in charge of a printing machine.
February 24th, 2008 at 11:45 am
John,
My company employs around 500 people. We have a mix of unionised and non-unionised employees, and the unionised ones get exactly the same employment deal as everyone else – including performance-based pay.
Our work had 4-weeks annual leave before it was legislated. We have an excellent superannuation scheme. We have subsidised medical insurance for ourselves and our families. We allow workers reasonably flexible working hours agreed with individual line-managers. We have unlimited sick-leave (provided we get a doctor’s certificate if we’re off for more than 3 days). We have annual company and departmental social functions. We have annual staff satisfaction surveys where management take staff concerns seriously, and tries to improve conditions. We have formal training plans to develop staff.
And on an annual basis, the employee value proposition is reviewed against surveyed companies to ensure that it remains competitive.
Our management recognise that high quality, motivated, experienced staff are key to keeping the business successful. They actively take steps to make sure that they can attract new staff and retain existing ones. They have taken specific steps to try an retain staff after we had several look to move to australia or to a new competitor that recently opened a branch locally.
I, personally, have been given development opportunities, and have moved into a team leader position. I have a gap in my team after I helped move one of my staff into a new position. I am struggling to fill that position, at a personal cost, as I am having to work harder to ensure that the work gets done. There is no bloody way that I want to lose any more staff, and as such I make sure that they are well treated. I make time for my staff, to help them and listen to their concerns, even if it takes up a lot of my time and I have to work longer to catch-up.
My comment was not a slight on your union; my comment was directed at your stated opinion that employers don’t give a shit about their staff; from that, it was clear to me that you’re in a union. Are you a union rep? Is this what you tell the union employees? If you actually stop to think about things, ‘employers’ are not some faceless bodies trying to screw-over employees. They are people like me, and possibly you – who want to improve conditions for staff, keep them motivated and develop them where possible.
Yes, if an employee doesn’t like it, they can leave. With such low unemployment, this is very viable. And that is why employers try to retain good employees.
Why is it that there is a belief that employers treat staff like crap because they don’t care about losing them, and yet the unions’ main weapon is removing staff from working?
February 24th, 2008 at 4:15 pm
Notice the graphic on the http://www.patchrubber.co.nz web site .
IT PAYS TO DO IT RIGHT
Not many know it , but the basic employment laws were bought in by National in 1991
re Employment Contracts Act
http://gpacts.knowledge-basket.co.nz/gpacts/public/text/1991/an/022.html
Definitions
27. Personal grievance—(1) For the purposes of this Act, “personal
grievance” means any grievance that an employee may have against the
employee’s employer or former employer because of a claim—
(a) That the employee has been unjustifiably dismissed; or…..
previously this sort of situation was only covered by those who had dismissal protection under a union award. The NP in their wisdom extended that to all workers( but took other rights away for union members)
February 24th, 2008 at 6:27 pm
Giving employees the right to make their own choices seems to be working OK.
February 24th, 2008 at 6:39 pm
Thinking overnite about the situation above, this needs to be covered in law. It is a helluva situation for both employer and employee. Isn’t it obvious that if an employee is seriously incapacitated in hospital, the employer might be in the cart, but it might not be humane at all to even discuss things as legally required, with the employee? Do you see my point?
Wouldn’t it be fair to make specific legal provision for this sort of situation?
I’ve raised the complaint already on this blog, that our lawmakers are ever anxious to be as fair as possible to everyone else from murderers and rapists down, but provisions of “fairness” are a foreign concept where employers are concerned. They are a legal pariah class.
“john”, even when you follow the legal provisions, a ratbag employee could put you out of business before you actually get to dismiss him, and vexatious actions brought by fairly-dismissed employees are a plague long since. It inevitably costs thousands to either defend the case, or to pay them to go away, even if the employer was in the right.
As I posted on the earlier thread, the law assumes that employers are some kind of money tree. Big corporations can pay for a punitive regulatory environment, but the small newly-started businessman can get strangled in his cradle. But I can’t be bothered to re-enter the arguments I made earlier, I’ll try to paste them in now.
February 24th, 2008 at 6:41 pm
# PhilBest Add karma Subtract karma (No Karma available) Says:
February 23rd, 2008 at 2:21 pm
In NZ, something happens when you go from an employee to being self-employed.
You are still what you were – a nice guy if you were that, an asshole if you were that.
You still suffer from stress like you always did, but probably worse. You still have the same assets – only they are now at greater risk than before – not lesser. You have not become a “rich prick” just by becoming self employed. If you were actually not that well off, you are still not that well off – perhaps worse off as you struggle to get established.
But the BIGGEST change, is the way you are regarded by the law, politicians, the unions, and many fellow NZ-ers. Too many fellow NZ-ers.
You are no longer entitled to any sympathy for YOUR position and that of YOUR dependents. You used to enjoy rigorous protection from the law; you are now on the opposite side of that law. It is now a rigorously punitive law, not a “protective” one, in spite of the fact that you are the same vulnerable, or even more vulnerable guy you had been before. That law will take the shirt off your back if you make a false move. The law is the biggest threat to your existence, ahead of evil creditors, ruthless fellow businessmen, competitors, and crooks. You are now a “class enemy”.
# PhilBest Add karma Subtract karma (No Karma available) Says:
February 23rd, 2008 at 2:27 pm
OK, it was wrong to sack a guy in hospital recovering from a heart op. But a violent thug who beats someone to within an inch of his life gets to plead extenuating circumstances. An employer doesn’t. An employer is about the only citizen with no rights in this respect.
So yep, Mr Farrar, there will be a record settlement. The lawyers will be rubbing their hands. The business is TOAST. It will be CLEANED OUT, the employer will lose everything he has toiled for and saved for all his life, barring what he is allowed to keep for the sake of his missus and kids, and the other 4 guys will lose their jobs.
Welcome to NZ workplace justice in action.
# PhilBest Add karma Subtract karma (No Karma available) Says:
February 23rd, 2008 at 2:36 pm
By the way, the Socialists LOVE this. They know that the big corporations can afford to hire legions of lawyers and well-staffed departments, and wrangle for months and years over employment law provisions, the RMA, and other regulations. THEY KNOW that the people they are destroying, is the potential new upper middle class. Strangling it in its cradle, in fact.
Hernando DeSoto, in “The Mystery of Capital”, calls this “The Glass Bell Jar” effect. The regulatory environment beloved of socialist politicians is a major obstacle to social mobility. It is a major cause of the phenomenon decried by those same socialists; “the rich get richer while the poor get poorer”. The established wealthy big businesses have no objection, as it helps to lock potential new competitors out of their markets.
Conveniently, it helps to broaden the “us and them” gulf that socialist politicians love to exploit with their rhetoric. Ultimately, of course, the public majority is behind them when they move against the evil “big businesses” that are exploiting their powers.
# PhilBest Add karma Subtract karma (No Karma available) Says:
February 23rd, 2008 at 2:42 pm
It’s the same with property prices, too. OK, easy credit might have something to do with it, and immigration. But a strangulation of the supply of land is the main factor. Again, we have socialist policies that are sold to the ignorant masses as something that is for our “protection” and “help”, that actually serve to lock potential new property owners out of the process.
And again, the socialists LOVE IT. They DON’T WANT YOU OWNING PROPERTY OF YOUR OWN. Their “remedies” say it all: THEY WILL OWN PART OF THE PROPERTY, seeing YOU can’t afford to buy it ALL anymore.
As a creeping program, it is in sucking stupid, stupid Kiwis, and others all over the western world, frighteningly successfully.
# PhilBest Add karma Subtract karma (No Karma available) Says:
February 23rd, 2008 at 2:43 pm
And even a “center right” blogger like Mr Farrar is dead from the neck upwards on these fundamentals.
February 25th, 2008 at 1:06 pm
Ghostwhowalks – I don’t think that’s quite correct. The personal grievance procedure was first introduced into law by the Industrial Relations Act 1973. It was designed to prevent work stoppages over dismissals, and it was in the National Party’s election manifesto. Unions opposed it at the time, and warned that workers would abuse the system with unmeritorious complaints. There was also the common law remedy of wrongful dismissal available to any worker.
The PG system under the IR 1973 was actually quite efficient, with inhouse union/employer disputes committees resolving most of the grievances.
To be fair, the ECA 1991 extended the personal grievance procedure to all workers, including white-collar workers, and this is in some ways responsible for the increase in personal grievances, the increase in the Employment Court’s workload and the perception of the so-called “grievance gravy train” which was clearly debunked by DOL research last year. Unions are certainly not the ones bringing unmeritorious grievances, they can’t afford it and have no interest in it.
Grievances for an employer can be costly, but there is a bit of a myth about how much they cost. Most grievances are resolved in mediation and with a bit of advice beforehand it is not hard to get the procedure right. I think a code of employment practice under s100A Employment Relations Act 2000 could help guide SME employers.
Spam – when employers do look after their staff this is only when it is profitable. If you could profit from paying employees less I’m sure you would, in fact it would be your business’ duty, as your goal is to maximise profit for the owners of capital and shareholders, not employees. If you do offer non-unionised employees the same as unionised employees, this is only because you have passed on conditions of employment negotiated by union employees and by the operation of s62 ERA 2000.
Without unions we wouldn’t have the Minimum Wage Act, the Holidays Act, the Wages Protection Act or any other basic protections for workers. People should be free to join a union or not, but unions are still an important part of the contemporary employment landscape. Workers realise this and this is why unions are growing.
February 25th, 2008 at 2:58 pm
Does economic growth and full employment, and the need for employers to compete with each other to GET employees and KEEP good ones, not have ANYTHING to do with it?
February 25th, 2008 at 2:59 pm
This is 3rd-form economics stuff.