CTU example was not covered by 90 day law
August 25th, 2010 at 10:00 am by David FarrarA few weeks back the CTU held up the example of Heather Smith:
Heather Smith was publicised in the union’s “name and shame” campaign after being sacked by Stokes Valley Pharmacy in Hutt Valley.
She had worked there for almost three years, but had to re-apply for her job late last year after the business changed ownership and name, and was sacked a few weeks later.
Now this case concerned me. Because the 90 day grievance free provisions are meant to apply to new employees only, not existing employees. I wasn’t convinced that a change of ownership could change things.
If her job was truly made redundant and she applied for a new job, then that may be a grey area – but if she was carrying on in much the same job then it would not be a true redundancy.
So I checked with the Minister’s office, and was told that the case the CTU had highlighted had gone to court – something not mentioned in the original media reports. This is a good thing, as it looked like the 90 day period had been misused.
And the court has ruled:
The first employment case brought to court under 90-day trial laws has gone in favour of a dismissed employee, prompting the Council of Trade Unions (CTU) to send a warning to employers.
Backed by the CTU, Ms Smith’s case ended up in the Employment Court, which ruled in a decision released today that the new employer had not complied with contractual requirements of the Employment Relations Act relating to the trial period, meaning laws preventing Ms Smith taking a personal grievance case were nullified.
The court also referred to “good faith” expectations and said the employer had not lived up to those in its dismissal of Ms Smith and there were grounds for a personal grievance.
CTU president Helen Kelly said the employer had relied on the law for complete indemnity from standards of decent employment practice, but was found to have breached both good faith requirements and terms in the employment agreement.
This is a good ruling by the court, and I am glad the CTU helped take the case. Unions do often play a valuable role in protecting some workers.
However I believe it was wrong to include this case as one of the 90 day examples, when there was in fact a lawsuit underway arguing it was not covered by the 90 day law. And indeed we have found out that the law is not as wide reaching as the CTU claimed.
Related posts:
- Trial periods working well
- Myths over the probation period bill
- The employment law changes
- 90 day trials
August 25th, 2010 at 10:12 am
Unions lying in support of their latest political cause. Weird.
Vote:August 25th, 2010 at 10:14 am
Always considered that the employer was wrong in this case and that so were the CTU for trying to claim this as a 90 days dismissal although that was what the employer used for the reason.
Should never had to go the the employment court and we wonder why the Unions get up employers noses.
Vote:August 25th, 2010 at 10:25 am
However I believe it was wrong to include this case as one of the 90 day examples, when there was in fact a lawsuit underway arguing it was not covered by the 90 day law. And indeed we have found out that the law is not as wide reaching as the CTU claimed.
and you think Helen Kelly will listen to common sense?
yeah right!
The sooner they give back the right for employers to decide who and when and for how long some one comes into their business premises the better.
Vote:Sure you can come in Mrs Union but when it doesn’t interfere with our business and only once a month for 30 mins.
August 25th, 2010 at 10:27 am
This is a great example of how the 90 day “fire at will” bill could be abused by some employers. It is lucky that the CTU supported this person but many workers are not members of a union and don’t want to cause a fuss if they are wrongly dismissed because it might affect their chances of getting a job some where else.
Vote:August 25th, 2010 at 10:34 am
There can be a difference depending how the business is transferred or sold. If A sells B the shares in the business, there is continuity of employment. If A sells to B the lease, stock, equipment and goodwill, it would seem B is at liberty to hire or decline to hire existing employees (some exceptions eg commercial cleaners) and any redundancy liabilities would be on A. Some small businesses are sold this way so the new owner is not cursed with the potential liabilities of the old company (eg tax issues) ( hence Joe Bloggs Ltd and Joe Bloggs (2010) Ltd, with the vendor agreeing to rename the old company to something quite different when the sale is completed).
In this instance there appeared to be a change of company, but it would seem the new company implicitly carried over the existing employment contract. That is if B does not want any or all of existing employees, then B would have to come to an agreement as to which employees A should ‘let go’ and which ones are allowed to ‘carry over’. If A and B do not address the matter and B allows existing employees to carry on then it wouldbe presumed B acquired the obligations of the existing employment contracts, so the 90 day rule would no apply.
Union leaders would know this too damn well (they are intelligent people who prefer having ‘political’ jobs rather than real jobs), but are happy to pread a different public perception.
Vote:.
August 25th, 2010 at 10:40 am
I agree with your points, DPF (but see peterwn’s comment). However, it seems from my reading so far that this is not the issue the judge ruled on – rather one of “good faith”.
From my limited understanding of the intent of the 90 day law, this ruling seems to ignore it. Trouble is, the rest of employment law is the law Labour gave us and that’s what the problem is here.
Vote:August 25th, 2010 at 10:42 am
To the contrary Crumble, what it shows is that an employer cannot misuse the 90 day law or the employment realtions authority or employment court will come back to bite it. This is welcome news for the government and it shows that Labour’s and that the Union attacks were mere scaremongering. Pathetically, in 12 months, the Unions have been able to point to very very few true cases of abuse of the 90 day law. Crumble, employers usually at least provide a certificate of service and, at the very least, the experience should serve employees (new to the market) better than trying to get a permanent job from being on the dole. Crumble, employers can wrongly dismiss employees in a number of different ways outside the 90 day laws. That is why there is a personal grievance procedure in an employee’s toolkit. Unfortunately, the law cannot help those “who do not want to cause a fuss,” nor can Unions.
Vote:August 25th, 2010 at 10:48 am
I agree with viking, it looked from the start that the employer was trying it on.
Vote:August 25th, 2010 at 10:50 am
peterwn, indeed, there is no doubt all the Unions are trying to do is trump up these stories to find some way to “evidence” their self-serving objections to the 90 days law, which works well for the vast majority employers and employees. On other occasions, they have done this and subjected the employee to public humiliation, which has adversely impacted on their chances of getting a new job. Shame on them and their Labour/Green mates.
Scrubone, “good faith” is important under any decent employment legislation.
Vote:August 25th, 2010 at 10:53 am
Reading the reports correctly (is the actual ruling online?) it seems like the problem was that the employment contract wasn’t watertight. Hence the 90 day trial wasn’t actually in place legally.
It seems that if the contract was done properly, this would have been completely legal. So you could argue that this is indeed a case of abusing the law.
That doesn’t excuse the union for using a case before the courts for a political campaign though. Heck, why not wait a few days?
Vote:August 25th, 2010 at 10:54 am
I would say that the majority of employers would have looked at that case and thought that the employer was being a bit of a prick.
Vote:August 25th, 2010 at 10:58 am
MikeNZ as an employee you would prefer to work under what was in force when Carnegie was making his money, seven days a week twelve hours a day for sod all ?
Or as an employee do you prefer to be a wimp and have the NZ holiday system ?
Vote:August 25th, 2010 at 11:46 am
Crumble (4) Says:
“This is a great example of how the 90 day “fire at will” bill could be abused by some employers. ”
What is your point Crumble? That this example demonstrates that people who can’t and wouldn’t otherwise get jobs should have the opportunity denied to them simply because some employers will abuse it? Do you have any idea what its like to find and hire reliable staff and what an impediment the previous regime was, let alone even the current regime? Do you have any idea of the risks that employers in small businesses take when employing staff?
Why are you attracted to the notion that we should legislate for the worst case outcomes rather than the normal and best case outcomes? That kind of logic would see cars banned.
Did it strike you as interesting that “workers” were creating such a song and dance in the weekend in order to deny those without work the opportunity to get some?
Vote:August 25th, 2010 at 11:56 am
Strugelling to see your rational DPF. Actually she did suffer as a result of the law because the employer fired her, caused her loss of income, and caused her significant emotional distress – all the while thinking he could get away with such noxious behaviour using Nationals law. And the only thing that prevented the boss from getting away with it all was his legal ignorance. The point to be taken from this case, as the court points out, is that had the boss applied the ERA correctly, he would have likely gotten away with it all. “the court still made it clear that when employers got their contracts right, dismissals “as unfair as Heather’s” could still go unchallenged.”
http://tvnz.co.nz/national-news/employee-wins-in-first-90-day-3732746
This is very chilling coming from the Employment Court – i.e. the same people that set the legal precidents under the Probationary Employment Law.
Vote:August 25th, 2010 at 11:59 am
@thedavincimode I don’t know how this will create jobs. Is it the same kinda of thing as the National Cycleway? Because that created a heap of work
My point was that we should be careful about this bill and make sure workers rights are protected and in this case it was.
Also if things were ‘normal and best case’ then why need legislation at all? This legislation is about worst case because it protects employers who for some reason hire people that are incompetent. Why should their incompetence in hiring be protected?
I don’t understand why there are so many small businesses hiring incompetent workers that legislation is needed to sort it out.
Vote:August 25th, 2010 at 12:10 pm
@glubbster So, if someone keeps getting fired from jobs under the 90 day ‘fire-at-will’ bill then this is a good thing for their job prospects? Not to sure I agree with you on that.
Yes, people can be wrongly dismissed outside of the 90 day ‘fire-at-will’ bill but I don’t understand why they are wrongly dismissed. It’s not that hard to fire someone the whole process can take a week.
Vote:August 25th, 2010 at 12:13 pm
duh Crumble, employers dont want to risk employing people without previous work experience or who have been on the dole or have a criminal record. The 90 day legislation gives employers a chance to hire these people and give them a chance.
Vote:This might be the first chance someone gets who actually turns out to be a good employee, yet was a risky proposition to hire.
If the employee turns out a bad one or not suitable for the job, then they wont be retained, but at the very least, the employee can put something on his or her CV and has some work experience.
Employers may hire “incompetent workers” due to Labour shortages, they dont do it on a whim or because employers are stupid. The reason you dont understand is down to your own ignorance.
On your rationale, we should leave those “incompetent workers” to stay on the dole or go back to crime. Or back to study for another few years on a completely different course.
Laughably ignorant, aren’t you?
August 25th, 2010 at 12:16 pm
>I don’t understand why there are so many small businesses hiring incompetent workers that legislation is needed to sort it >out.
Becuase some people are good at hiding how useless they are for nearly 3 months. or becuase some people yo uwould never normally hire ask for a chance and promise you they will do well, and overcome the key concerns you have about them. some succeed, others revert to ttype.
i was talking with an employment lawyer about this last week and he said it depended on how the business was sold.
If the new owner had only bought the assets of the business and then hired whichever staff he wanted, then he could quite happily use the 90 day law for the new employees.
The fact that this guy got it wrong, seems to me he took extra shortcuts and did not get legal advice for his contracts, and is now paying for it. which is how it should be.
and another thing, who told people to not put their age or even gender on CV’s now? i get applications and have no idea who i am looking at or how to determine how the experience matches their age etc. i can kinda guess from thier job history, but why are they not putting it on the CV?
Vote:August 25th, 2010 at 12:16 pm
Crumble, the employee will get a certificate of service, has some experience in the industry or with customers etc etc, its far better than nothing. And at the end of the day, the employee has a good chance of being retained in any event, iin the vast majority of cases an employer doesn’t waste his or her time hiring someone unless they are serious.
Vote:Again, you are looking at the worst case scenario.
Your other comment makes no sense so I am unable to assist you.
August 25th, 2010 at 12:17 pm
Allso – why are all you rightists in favour of natural justice being applied to property rights (i.e. cases of theft) but not to the rights of people (i.e. employment law cases). Does the right really think that property and profit are more important than employees are? You Betcha.
Are the scales finally starting to fall off your eyes my lower to middles class right wing friend? You’ve got more interests in comon with me than the boss. Forget the right, move left.
Vote:August 25th, 2010 at 12:25 pm
The way it would never have gone to the Employment Court was if the employer hadn’t sacked the worker, and claimed to do so under the 90-day law.
It was perfectly reasonable to include this an an example in the campaign against extending trial periods. The argument was “if you extend trial periods, employers will do stuff like this”. Whether you agree with legislatively allowing trial periods or not, this is one of the good arguments against them. Most employees won’t know their rights and won’t be willing to speak out. If employers don’t want examples like these being used against the 90-day law, then they shouldn’t fire people telling them they can because the 90-day trial period allows them to.
Vote:August 25th, 2010 at 12:30 pm
case here:
http://www.justice.govt.nz/courts/employment-court/documents/2010-%20NZEmpc%20111%20Smith%20v%20Stokes%20Valley%20Pharmacy%20-2009-%20Limited.pdf
“Remedies for the plaintiff’s claims for which the defendant is liable are
reserved for settlement or subsequent determination by the Court”
So Honest Troll, you are wrong, she will be entitled to remedies.
“The point to be taken from this case, as the court points out, is that had the boss applied the ERA correctly, he would have likely gotten away with it all.” Show us where in the case it says anything of the sort!! Rely on Helen Kelly at your peril!
What it does show as Kate W says is: “If an employer misuses a trial period they will get caught out.”
Honest troll, there is nothing honest or true about your post.
Vote:August 25th, 2010 at 12:32 pm
David – anyone with any brains is disagreeing with you on this one. Looks like this law is too disgraceful for even you to spin into something resembeling reason. National has screwed its trust with the public on this one. You wait untill there are several thousand parent out there that have had one of thier kids shat on because of this law. Then watch the electorate turn on you.
You Nats have really fucked up over this. You haven’t learned a thing from John Howards demise – and those that fail to learn from the leasons of history are bound to repeat its mistakes. Silly Nats just couldn’t help yourselve’s. Just had to violate the workers.
Vote:August 25th, 2010 at 12:33 pm
Honest troll, can you spell correctly, your posts are hard to follow.
Vote:I am in favour of natural justice applying to employees, as I said above if you could read, good faith is an important part of any good employment law and the good faith provisions of the 90 day period has been retained.
You just make silly political points.
Like your one about how National will lose on this policy. Public feedback is actually very positive. Many other jurisdictions have this law or even a year trial, so get out of your narrow minded world view “Honest” troll.
August 25th, 2010 at 12:35 pm
blub – you are a slow one. The employer screwed up. That’s the only reason she gets any compensation. Go play with Beven or Burt. They’re more on your level than me.
Also – you wait until reality sets in for the electorate. It’s took a while for the Australian electorate to realise they were being shafted as well..
Vote:August 25th, 2010 at 12:35 pm
@glubbster But if there are very few jobs to start with why would an employer hire someone who has been on the dole for a long time or just out of prison, when they have a huge number of people recently laid off looking for work?
Also, labour shortages? I thought we had record unemployment at the moment? Guess you know better because I’m so ignorant
I still don’t quite get how someone having a pile of “They worked here” letters for jobs that they lasted at for less than 3 months at would help them find employment.
Vote:August 25th, 2010 at 12:40 pm
Graham: “whether you agree with legislatively allowing trial periods or not, this is one of the good arguments against them.
Most employees won’t know their rights and won’t be willing to speak out.”
That statement is left-leaning rubbish. This case highlights that employers may not do this which serves both as a warning to employers and information to employees. It sets a very useful precedent.
Secondly, Employees can always talk tot heir Union, the Department of Labour or contact a lawyer (free advice or legal aid or formal instruction) if they have any doubts. And an employee would have to be living under a rock not to have doubts about this sort of thing.
Vote:August 25th, 2010 at 12:41 pm
meh – proper spelling and grammar slow my intellectual process down too much. Can’t be arsed.
Vote:August 25th, 2010 at 12:48 pm
Thirdly Graham, education of employees of their rights is what is needed, not to abandon the policy because a few employees labour under a rock and there is a chance they might have a nasty employer who takes advantage of them. Not the most likely scenario as we saw with the employee above who contacted her union and got the redress she deserved.
Its been over a year Honest troll. If you read my post above, I just skittled your argument that the employer could have gotten away with it. And yes she was entitled to compensation which is a good thing and rebuts your argument that she is left without redress.
Crumble, this legislation will become even more useful in good economic times when employers are desperate for people.
Vote:You dont just pass legislation for the short term, dont be so myopic. In saying that, there are always shortages in certain sectors, unemployment does not follow a flat line across all industry!
Its about experience, particularly for a young employee new to the workforce. Compared to the default position, its clearly more advantageous. And think about it, an employee with experience has a better chance of securing a permanent position next time.
August 25th, 2010 at 12:51 pm
glub – you’re full of it. You’ve done nothing to rebut my argument exept provide a few non-sequiters and pronounce that you’ve defeated my argument. You’re a tedious bore.
Vote:August 25th, 2010 at 1:44 pm
read the case then Honest troll and tell me where it substantiates Kelly’s comment that you base your post around: “The point to be taken from this case, as the court points out, is that had the boss applied the ERA correctly, he would have likely gotten away with it all” or your claim that she got no remedies. Both clearly wrong.
Vote:August 25th, 2010 at 2:03 pm
However I believe it was wrong to include this case as one of the 90 day examples
Why?
That belief would probably be correct if the 90-day law was immaterial to the sacking. Given that this sacking was a direct result of a 90 day law this is most definately a 90 day case. It is irrelevant whether the law was used correctly or not =- what is more important is the motivation behind why this person was sacked – i.e. that this law was actually a catalyst.
Vote:August 25th, 2010 at 2:11 pm
glub – take it up with the employment court if you think they’re wrong in pointing out that it was the employer’s reading of the law that got him pinged, not the law -i.e. under slightly different circumstaces the law would have allowed the employer to get away with the injustice.
Also i’ve never argued that employees wouldn’t have remedies available where the employer is retarded and doesn’t get legal advice before testing a new employment law! It’s when employers actually learn what this law lets them get away with when we’ll start to see the media latch on to case after case of worker maltreatment. This is when National will begin to circle the plug-hole. Fortunately there’s plenty of time before the next election.
Vote:August 25th, 2010 at 2:55 pm
Honest Troll, your comprehension skills are weak indeed. Kelly is claiming that had the boss applied the law correctly, he would have gotten away with it. There is no basis in the case for this conclusion. Kelly has made it up for her own political ends and you have bought it hook line and sinker. “Slightly different circumstances,” which are??
peterwn has already discussed the reasons in full above: “In this instance there appeared to be a change of company, but it would seem the new company implicitly carried over the existing employment contract.”
Its been a year since the 90 day law passed, how long do you need to realise that you and the Unions are wrong – there have been only rare cases of employer abuse of the law.
Work choices have nothing to do with the issue. What about all the jurisdictions, such as the UK who allow trial periods for much longer. Or are you still sitting under your rock?
Your election predictions are absurd. Perhaps you should put your money where your mouth is.
Vote:August 25th, 2010 at 4:56 pm
Stunning, CTU telling pork pies. What next? Labour looking for scandal on John Key? Oh right, done.
Vote:August 25th, 2010 at 5:02 pm
Honest John has been here before under a different handle. Trying to recall who it may have been. A union man for sure. Tane? Robinsod?
Vote:August 25th, 2010 at 5:47 pm
Rebels without a cause doing some good work at last?
Vote:August 25th, 2010 at 5:55 pm
KrazyKiwi:
Yes, I had a similar thought after reading this comment from “Honest John”:
At the time I thought, gee, sounds a bit like “Phillip John” pretending to be someone else. He used to prattle on about peak oil… and nothing much else.
Then I did a Kiwiblog search, and guess who likes to throw “Honest John” into his comments? Sonic, take a bow – once… and twice.
Seriously, I do recall a leftie circle-jerk about “Honest John” a while back, so quite possibly someone who comments under another alias at The Standard.
Vote:August 25th, 2010 at 8:53 pm
No matter what others say it’s pretty clear the CTU have been caught out again with their so called “90 Day” examples.
Heather Smith was not a new staff member, and this was an ongoing case. Not as black and white as the CTU had claimed, while their other girl – who has suddenly gone very quiet, Florence Cohen, was found to be a young Labour Party activist, who considers many Labour MPs, Labour activists etc as close Facebook friends and associates.
Why do they need to lie about them? We all know that there are not employers out there, but the CTU really fucked up big time.
Vote:August 25th, 2010 at 10:20 pm
I think it boils down to this; The unions are pissed off that National’s law forces employees and employers to discuss the status of the new job within 90 days. There is nothing worse for union membership numbers than employees individually discussing their performance with their employer.
Vote:August 26th, 2010 at 9:43 am
I would suggest that those commenting to the effect that the CTU have been “caught out” might care to read the actual judgment before rushing to conclusions.
While it did find that Heather Smith was not an “new” employee and couldn’t lawfully have been put on a 90 day trial, the Court also found that even if she had been legitimately on a 90 day trial, she could not have been lawfully dismissed without the employer complying with the performance assessment requirements set out in her employment agreement and could not lawfully have been summarily dismissed as she was, and had the right to bring personal grievance action in respect of these actions.
It is actually a huge win for employees against employers who attempt to fire at will under the 90 day law. I have uploaded a copy of the judgment at frogblog.
Vote:August 26th, 2010 at 11:21 am
Good on you frog, keep working to make sure that employees and employers never get a chance to negotiate individual contracts…
Who’s gonna pay for the fat cat union bosses to skim the cream from the workers when the workers have a reasonable and functional relationship with their employer?
Vote:August 26th, 2010 at 12:02 pm
“if she had been legitimately on a 90 day trial, she could not have been lawfully dismissed without the employer complying with the performance assessment requirements set out in her employment agreement”
Vote:Frog, the performance assessment requirement arose from her contract.
For new employees, there may not be any performance assessment requirements. If there are, employers should follow them. What is unreasonable about this for either party?
Given that it is not unreasonable, doesn’t the anti 90 day law campaign look ridiculous? Or does it not suit your political purposes to come to that conclusion?
August 26th, 2010 at 8:37 pm
No frog, it is still a loss for everybody who craves success and achievement in the workplace as they cannot negotiate their own contracts.
Fess up, you union types hate the idea of good employees being paid more for their work than shit ones, who inevitably join unions.
Vote:September 20th, 2010 at 4:39 pm
And now we know why it wasn’t covered by the 90-day law: she signed her employment agreement with the new owners on the second day she worked for them.
Looks like the CTU were right to use Ms Smith after all.
ref: http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10674746
Vote:September 20th, 2010 at 4:55 pm
“Looks like the CTU were right to use Ms Smith after all.” – not as a showcase against the 90 day trial period since that wasn’t applicable. Certainly they were right to take up her case against the unfair dismissal though.
Vote: