Process beats substance

January 6th, 2010 at 6:09 pm by David Farrar

The Herald reports:

A small business has been ordered to pay an employee $12,000 – including $6000 compensation for distress – after he was sacked for supplying cannabis to a workmate. …

The ERA ruled Saxons had not given Mr Wilkinson notice of the allegation and its likely consequences, or the opportunity to seek support, advice and representation.

It also criticised Saxons for not giving notes from the meetings to Mr Wilkinson’s lawyer, and for its view that Mr Wilkinson had sold drugs in the workplace.

Evidence had shown the transaction between Mr Wilkinson and the other worker took place outside work hours, away from Saxons’ premises.

Saxons had no policy on employees’ use of illegal drugs outside work and – although not deliberately – it had unjustifiably dismissed Mr Wilkinson.

So you discover that one employee has been selling drugs to other employees, but as you don’t have a written policy against it, it is okay so long as done outside the workplace.

Expecting small business owners to be able to have employment policies that cover every contingency such as drug dealing outside work is impractical, and why small business owners often lose. They can’t afford to have expensive in house lawyers to advise them on every aspect on employment practices.

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38 Responses to “Process beats substance”

  1. MikeNZ (3,233 comments) says:

    Ali Khamenei’s The Spirtual leader of IRAN appears to be a thief.
    It seems he isn’t doing too badly, in a country that isn’t as rich as ours he has buried away millions from his very lucrative occupation.
    That of being the spiritual leader of Iran.
    what’s new?

    http://homylafayette.blogspot.com/2009/12/makhmalbaf-secrets-khameneis-life.html

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  2. Dave Mann (1,244 comments) says:

    The most effective way to deal to a cockroach is to step on it:

    http://www.stuff.co.nz/world/3210524/Boat-rammed-in-whale-war

    I don’t eat whale meat myself, but its good to see the Japs fighting back against eco-terrorism.

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  3. Yvette (2,763 comments) says:

    from stuff.co.nz –
    Proof soon on forecast of warmest decade
    Last updated 05:00 04/01/2010
    Tension is rising over whether the decade just ended was the warmest on record in New Zealand.
    December’s national average temperatures will be critical in determining the facts, which are of great interest to both sides of the climate change debate.
    … But some media, including the government-funded Science Media Centre, have jumped the gun, mistakenly turning Niwa’s prediction into “fact”

    Doubts cast on warmest decade
    Last updated 05:00 07/01/2010
    Doubts are being raised about the significance of new figures showing the past decade has been New Zealand’s warmest on record.
    … A National Institute of Water and Atmospheric Research (Niwa) statement yesterday reaffirmed its statements that the decade was likely to be the hottest recorded.
    However, the new statement failed to include figures.
    Blue Skies Weather forecaster Tony Trewinnard said it was doubtful a few hundredths of a degree [0.03˚C] was such a statistically significant amount on which to base such statements.

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  4. MikeNZ (3,233 comments) says:

    Dave
    I don’t understand this whole thing.
    On the sea just like the road there are rules and they are more closely followed and acted upon as it is more serious if you have an accident.
    Why are Kiwis who deliberately put themselves and others at risk at sea not prosecuted for doing so and their masters and boatswains tickets taken off of them by the authorities?
    Even if you go as a passenger you know what they are going to do and are in effect aiding and abetting it.

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  5. jaba (2,146 comments) says:

    oh my god .. I goggled FOXNEWS last night and they had an article (god knows why this subject) about the G spot. It seems there is no such thing.
    Bloody hell, all those years hunting/searching for nothing. Now I know those people searching for the Holy Grail feel.

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  6. CharlieBrown (1,054 comments) says:

    Did anyone read the article about the sacked worker for selling drugs who has had a $12000 payout for unfair dismissal?

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10618787

    When the hell are National going to start fixing BS laws like this?

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  7. Murray (8,803 comments) says:

    They are at risk Mike but it requires an international court for incidents outside territorial waters and no local government wants to touch it because they think they’ll lose votes.

    the reality is that interferring with these whalers is piracy. Do it off Somalia and see what happens (bugger all if its the Royal Navy but the Aussies will be hosing you with automatic weapons before you can I’ll take a couple of sushi rolls to go).

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  8. MikeNZ (3,233 comments) says:

    Having Sushi tonight.

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  9. MyNameIsJack (2,414 comments) says:

    here’s one to gladden the hearst of redbaiter and mates among the birthers, the truthers, the teabaggers and the destroyers of all that was good about America.

    “To think that we can save the Constitution without God’s help when the government of the United States is corrupt is absurdity. We are in America’s second Revolutionary War to save our freedom, which we paid for with blood. We need God’s help and I’m not ashamed to ask for it.” — Idaho gubernatorial candidate Rex Rammel

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  10. Murray (8,803 comments) says:

    Have you considered not being a complete asshole for just one day of life at all?

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  11. Dave Mann (1,244 comments) says:

    Well, MikeNZ, if your analysis is correct, you know a lot more about Maritime Law than I do!

    As far as I am concerned, though, these Sea Shepherd people are nothing more than saboteurs (probably my previous label of ‘terrorosts’ was a bit too dramatic).

    Maybe some shadowy Jap organisation will one day deal to these fuckers in the same way as the French dealt with the Rainbow Warrior.

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  12. Dave Mann (1,244 comments) says:

    Murray, was your comment at 8.47 meant for anybody in particular? Just asking…. :-)

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  13. MyNameIsJack (2,414 comments) says:

    Dave Mann (296) Says:

    January 7th, 2010 at 8:48 am

    Maybe some shadowy Jap organisation will one day deal to these fuckers in the same way as the French dealt with the Rainbow Warrior.

    So you approve of terrorism, do you? Of acting outside the law? Of forgetting everything that civil society means? Actually, you sound just like my son did at 3!

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  14. jaba (2,146 comments) says:

    yes I did see the compo bit in the Herald CharlieB .. what a shocker.
    Good to see Dame Helen and friends had a gay old time on the walk over the last 3 days.

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  15. Brian Smaller (3,966 comments) says:

    Murray

    Have you considered not being a complete asshole for just one day of life at all?

    I am assuming that in a trick of timing that was meant for MNIJ but just in case it was meant for me, I have to admit that I usually try to keep being an asshole for after lunch.

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  16. Redbaiter (11,880 comments) says:

    Good read on Conservatism and political outcomes outcomes since the sixties

    http://www.americanthinker.com/2010/01/our_second_civil_war.html

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  17. MyNameIsJack (2,414 comments) says:

    My guess is it was aimed at me as Muzza has a thing about me and he doesn’t like me pointing out the stupidity of so many seppo pollies. And the silly frocker can’t even spell areshole! Just like most seppos, too gay to use the correct terms.

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  18. MyNameIsJack (2,414 comments) says:

    Seems I can’t spell ARSEHOLE either – why won’t the edit function work anymore?

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  19. Pete George (23,830 comments) says:

    jaba at 8:40 am

    Bloody hell, all those years hunting/searching for nothing.

    Searching for the g-spot? Or searching Fox?

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  20. Redbaiter (11,880 comments) says:

    Chart showing how the left are crippling the US economy-

    http://static.businessinsider.com/~~/f?id=4b43aad900000000006afad2

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  21. GPT1 (2,021 comments) says:

    How is it that one washed up hippy looking for a cause and a few of his drop out mates can garner so much attention? Minto is an embarrassment.

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  22. MyNameIsJack (2,414 comments) says:

    WTF is going on with GD?

    What drugs is farrar getting? Has he been seen with Philu?

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  23. Pete George (23,830 comments) says:

    Chart showing how the left are crippling the US economy-

    There is a blue line and a red line but nothing suggests the left are crippling the economy. The increase in government employees continues through most (left and right) administrations. And the decrease in goods producing employees coincides with the reign of GW and rise of Chinese (in particular) – ie, the capitalists moving their manufacturing offshore.

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  24. Redbaiter (11,880 comments) says:

    ” increase in government employees continues through most (left and right) administrations.”

    Right administrations… pfft.

    The chart reveals the failure of those Republican governments to be right.

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  25. peterwn (3,335 comments) says:

    I am awaiting a copy of the judgment from the Labour Department (for some reason they email copies rather than allowing direct downloading as the Social Welfare Appeal Authority does). It would appear to me that the judgment would be partially open to challenge in a higher court.

    An employee convicted of a reasonably serious crime or sentenced to a jail term can logically be dismissed even if there is no specific company policy on this. This would be covered by the implied terms of any employment contract.

    An employee may also be dismissed for committing a crime against the employer as long as the employer can prove this on the balance of probabilities (ie a lesser standard than for a criminal conviction). Again, there need be no specific policy IMO.

    It would follow that dismissal should be available even if such a crime was not against the employer, and it may be that the Employment Tribunal or a higher court could overturn the Authority’s decision on this aspect.

    However the Authority’s decision on the employer not going theough process is likely to ‘stick,’ so the practical effect if the employer partially wins on appeal, would probably be a $1000 – $2000 award instead of $12000.

    In such cases I cannot see why an employer cannot come to grips sufficiently with employment law and learn the bare essentials of what is required when dismissing something. AFAIK the Employers and Manufacturers Federation can advise employers in such situations. To this extent I have little sympathy with Saxons.

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  26. Ross Miller (1,618 comments) says:

    My advice Saxons … don’t pay. Appeal and ask the likes of the Auckland Enployers Assn to represent you. Stupid decisions (accepting problems with process) can and should be appealed.

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  27. Don the Kiwi (1,821 comments) says:

    I cannot believe that the Employment court supports someone who is breaking the law.

    Good on Saxons for sacking the prick – I don’t even employ smokers now.
    When I informed a young fellow that I would not employ him because he was a smoker, he said “That’s discrimination.”

    I said, ” That’s right. If you want to ruin your own health, do it in your own time. Don’t expect me to pay you to do it.”

    The arsehole (employee salesman) who ripped off my company for $250K reported me to the employment court for wrongful dismissal – I didn’t pay the prick a cent, but it cost me $7500 in legals .

    The Employment court is totally fucked.

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  28. kowtow (8,945 comments) says:

    The decision in the case about the drugs is yet another example of “rights” trumping common sense and decency.

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  29. voice of reason (490 comments) says:

    Seems to be a fair bit of He said, They said, yeah but, no but, in this case.
    They may have been better served to pass on their initial suspicions to the police.
    I heard one of the Saxon Appliance guys on the radio mentioning how important the business’s reputation was and that they couldnt have “drug dealers” on the staff who might have to visit a customers house.
    Well if it was that important to them all they needed was a simple clause in the employees contract that addressed actions bringing the company into disrepute. Shouldn’t require a lawyer to write up such – a simple internet search turns up dozens of contract templates. Just an example of a “small” business not crossing the Ts & Dotting Is even tho they’d been around for 20 odd years.

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  30. CharlieBrown (1,054 comments) says:

    voice of reason – As DPF mentioned, small businesses do not have the money to fund lawyers fo every detail, and the fact is, the ERA is so complicated and unintuitive, lawyers are required to dot the I’s and cross the T’s. Remember, employment law is exempt from normal contract law.

    Plus, this scenario is common sense. Not only was the employee undertaking illegal activity with a colleague, he was using the employers property (cell phone) to do so. It would seem logical that such activity would come under grounds for instant dismissal at the employers perogative.

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  31. voice of reason (490 comments) says:

    CharlieBrown (185) Says:
    January 7th, 2010 at 6:18 pm

    CB – I dont really agree, I think a lot of people think the whole thing is more complicated than it really is. You dont need a lawyer. (Even so I’d have thought most businesses would have used a SB lawyer at some point ) There are hundreds of other companies who have done this before – no need to re-invent the wheel. The Canterbury Business Association or the Canty Chamber of Commerce would have examples, templates. For Christ Sake even the ERS itself has a contract builder! as well as screeds of info on what to do and what not to do.
    In any case your employees are the most important part of your business – why would you not allocate the proper resource to sorting a contract.

    Common sense doesnt enter into it – the employee was not proven to have acted illegally – the cell phone had a msg that said something like “I have got the stuff for you”
    Again if Saxons had suspicions they should have passed them onto the cops.

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  32. kowtow (8,945 comments) says:

    voice of reason@634

    Call the cops,be reasonable! They”d say “sorry not enough evidence,this is a labour /civil matter, get a lawyer”. Maybe not so simple after all.

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  33. CharlieBrown (1,054 comments) says:

    voice of reason… he admitted to breaking the law. And do you seriously think they drew up these contracts in the first place, I would have assumed that at some time, the business would have paid someone to come up with a standard contract, and bloody hell, who would ever have thought that the law would be so pathetic in a scenario like that.

    Yes, and its obvious common sense doesn’t enter into it, hense lawyers are needed to be hired when going through the process of dismissing an employee for breaking the law using a company phone.

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  34. kiki (408 comments) says:

    more collateral damage in the stupid war on drugs. Legalise these things and this wouldn’t be a problem.

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  35. voice of reason (490 comments) says:

    CharlieBrown (187) Says:
    January 7th, 2010 at 6:55 pm
    voice of reason… he admitted to breaking the law

    CB – No he didnt admit breaking the law. Saxons claimed he admitted it and the news repeater reported that . That was the crux of the issue – “He said, They said”

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  36. peggysue (4 comments) says:

    Glad to see there is a voice of reason here. Employment law exists to protect workers from exactly this sort of frivolous claim by an employer. It works both ways, it protects employers from such claims by employees too.

    There is a strong whiff of moral high horse about the article, for something that may or may not have happened, out of work time, and which didn’t involve any damage or risk to the employer. Wheres the beef?

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  37. CharlieBrown (1,054 comments) says:

    voice of reason – Where did you get that information from? If that is the case then the herald should be censured for lieing as that is shocking journalism.

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