Why we need more substance over process in employment laws
January 25th, 2013 at 12:00 pm by David FarrarNatalie Akoorie at NZ Herald reports:
Mr Gostmann was dismissed without notice from Independent Refrigeration and Electrical in Whakatane in August last year after making a series of costly and serious errors.
In one of the incidents an apprentice asked Mr Gostmann if cables had been isolated when they had not. The cables short-circuited when the apprentice went to move them and he narrowly avoided electrocution.
So almost killed someone.
When Mr Gostmann was interviewed for the senior position early last year, he told Mr Faber he was a refrigeration engineer with 15 years’ experience in South Africa. But when he could not perform basic duties alarm bells rang.
Incompetent.
When Mr Faber made inquiries with Mr Gostmann’s former employers in South Africa he was told Mr Gostmann was merely a handyman.
Lied.
His only qualification in the industry was the equivalent of a two-week course completed for immigration papers and that a reference from his former employer was actually signed by an unwitting office person.
Unqualified.
ERA member Rachel Larmer also accepted evidence that Mr Gostmann’s named referee was someone who worked at a supermarket, rather than at a coolroom and display refrigeration manufacturing company in South Africa, as stated on Mr Gostmann’s curriculum vitae.
However, she criticised Independent Refrigeration for not attempting to improve Mr Gostmann’s poor workmanship through a performance management or monitoring process.
He lied about his experience and was unqualified – and it is their responsibility to improve his performance?
She also said the company should have carried out more thorough reference checks but acknowledged Mr Gostmann was 50 per cent to blame for his dismissal because his work was not up to standard.
The reference was effectively false, and again this is the company’s fault!
She told Independent Refrigeration to pay $10,304 to Mr Gostmann for distress compensation.
Incredible.
Who would want to be an employer?
Related posts:
- Employment Dismissal Process
- Process beats substance
- Process vs Substance
- Why our IR laws still need changing
January 25th, 2013 at 12:07 pm
The question is: when are the Nats going to change this crap.?
Its been around now for longer than they have been in Govt. and we and they all know about it but they sit on their hands wringing them and pontificating.
Wilkinson has been the lazy socialist at the table. Who’s next?
January 25th, 2013 at 12:11 pm
these cases can be appealed, unlike disputes tribunal
Vote:January 25th, 2013 at 12:14 pm
Great, who needs common sense when you can pay lawyers?
Vote:January 25th, 2013 at 12:18 pm
I imagine it must be quite distressing when your lies and fraud are uncovered. Poor chap.
Vote:January 25th, 2013 at 12:21 pm
Of course if the apprentice had been fried – it would have been the companies fault as well and OSH would have prosecuted them for not maintaining a safe work environment.
It all makes work for the bureaucrats to do with the added benefit of supressing free enterprise – the onward march of the progressives towards socialist Nirvana
January 25th, 2013 at 12:22 pm
There is no common sense in the disputes tribunal, it is arbitrary and subjective.
But in these mad cases coming out of the idiot employment relations, show that you can not be rid of an incompetant employee.
There is no way you can retire an idiot .
This is New Zealand and we are stupid
Viking2 (8,592) Says: January 25th, 2013 at 12:07 pm
The question is: when are the Nats going to change this crap.?
Its been around now for longer than they have been in Govt. and we and they all know about it but they sit on their hands wringing them and pontificating.
Wilkinson has been the lazy socialist at the table. Who’s next?
Vote:January 25th, 2013 at 12:22 pm
The guy was a dirt bag, of that there is no doubt. But I have to ask – why would an employer take someone on without proper reference checking? Taking a written reference as gospel??? FFS, particularly in a trade where there is high risk, why would you NOT perform proper reference checking – and if you cant, dont hire!
Vote:January 25th, 2013 at 12:22 pm
This is a travesty of justice.
Yeh go ahead and appeal.That’ll cost another $20000. And you might get a soft cock judge to find against you.
In theory it all works ,but in practise this is the reality,absolute bullshit.
Another question ,has this liar lied to immigration about his “skills” to get accepted to Aotearoa. If so that’s a crime.
Maybe this guy needs deporting back to Saint Nelson Mandela land,afterall we’re told it’s a great rainbow lovey dovey spot now that evil honkey got the boot.
Talking of crime,surely providing a knowingly false CV is into criminal activity? Why has this dangerous,liar been compensated?
Vote:January 25th, 2013 at 12:24 pm
Unbelievable – can anyone elaborate on whether this is a case of a rogue ERA member taking a selective interpretation or genuinely the letter of the law? How much discretion does the ERA have in coming to a decision?
Vote:January 25th, 2013 at 12:26 pm
The employee should be charged with fraud!
Vote:January 25th, 2013 at 12:26 pm
what you say is true kowtow
Vote:you have to remember that the potential employee comes in armed with references
and you never know, he looks OK,
I still like the three month rule, where employment is temporary until confirmed .
January 25th, 2013 at 12:27 pm
“Almost killed someone”
and if they had killed someone it would be the employers fault.
How would you fix this?
Perhaps have the applicant sign off on their own CV and acknowledge that anything untrue is automatic grounds for dismissal. For a job requiring a trade skill that should be common sense.
This could work both ways, so that if the employer misrepresents the job, then the employee has grounds to resign immediately.
Vote:January 25th, 2013 at 12:27 pm
Back when I was starting to enter the workforce, the advice I receved was that any lie on your CV is a justification for a sacking.
While the company should have checked this guy more throughly, there really is zero justification for compensation. And the comment about allowing him to improve is outrageous. That’s resignation material IMHO.
Vote:January 25th, 2013 at 12:29 pm
At the greatest risk of appearing prejudiced…
Is anyone else here unsurprised the dodgy sparky in this story is a South African?
Vote:January 25th, 2013 at 12:29 pm
ERA have been taken over by their own interpretation of law.
Vote:ERA is rotten at the top.
above read Viking correct
Viking2 (8,593) Says:
January 25th, 2013 at 12:07 pm
The question is: when are the Nats going to change this crap.?
Its been around now for longer than they have been in Govt. and we and they all know about it but they sit on their hands wringing them and pontificating.
Wilkinson has been the lazy socialist at the table. Who’s next?
January 25th, 2013 at 12:49 pm
Nothing in the article says whether or not Gostmann was registered and held a current practising license so odds on he was employed as a labourer.
Vote:If so WTF was Gostmann doing proscribed work on live conductors and why was an apprentice going to him to check if they had been de-energised when it was his, the apprentice’s, responsibility to ensure that any conductors that he intended to work on were in fact grounded and it was safe to commence work?.
January 25th, 2013 at 12:49 pm
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Unpopular. Like or Dislike:January 25th, 2013 at 1:12 pm
On the evidence of this post the employer has been treated very badly by the ERA.
Vote:It would appear that membership of the ERA should be temporary and conditional on being realistic.
January 25th, 2013 at 1:17 pm
oi cha,read the post. It says “senior position”,so that’s your labourer and attempt to excuse this bullshit out!
Vote:January 25th, 2013 at 1:20 pm
lol. In [jalmot] hamnida’s perfect world there are no employers. Everyone is a self-employed sole contractor with only themselves to blame if they have no work.
In which case the would be no need for ERA! Well done!
Vote:January 25th, 2013 at 1:20 pm
Senior or not if he was in any way involved with proscribed work a registration and practising license would be a requirement.
Vote:January 25th, 2013 at 1:24 pm
Fair processes are helpful in order to establish whether a decision is fair in substance. But if you can establish that another way, a lack of process can just be disregarded. Process should not be an end in itself. Here there appears to be ample evidence the decision to dismiss was substantially fair.
However, these wierd and confused rulings are not much of a disincentive to employ people. The market prices it in by just having lower wage rates. So the cost is borne by honest and competent employees, not by the employer. The cost of sick leave abuse is much higher. Anyway I doubt someone like this would get past the probation period now.
I do wonder though about employers not checking references. When this is done at all, it is typically done at the end after putting time into interviewing the person. Just calling a referee up front can save a lot of time and help narrow down the list to a couple of suitable people.
Vote:January 25th, 2013 at 1:46 pm
@pq…to my way of thinking common sense is subjective…since you may disagree with what I believe is common sence and vice versa.
Vote:January 25th, 2013 at 2:54 pm
Its this sort of stupidity from the employment courts that will slowly but surely lead to worse and even more worse (sorry bout the grammar) working conditions.
Employers will be more and more inclined to employ people on conditions that effectively mean that they can be fired anytime so that they wont get caught up in this sort of shit. Things like casual, part time, short term, piece work,etc, etc will become the norm – (like the power companies are employing electricians to change over power meters – piecework)
and then everyone will be moaning about how bad employment is and how low wages are….
its a no brainer.
Vote:January 25th, 2013 at 2:54 pm
No, sorry, the employer bears some of the blame here.
The very fact that were were so many lies in his resume means that if even one thread had been picked th whole thing would have unravelled.
I’ve just spent a year restructuring a business robbed blind in just six months by a guy. Who then had the temerity to sue for wrongful dismissal (I won that, but still…). I check the CV he’d been employed on and here we have a suburban solicitor who’d supposedly managed an oil exploration company in Kazaksthan and whose reference was someone at the US State Department. It took me about 10 minutes to demolish that, with a (bounced) email and a phone call.
Lo and behold, with an active police investigation on him I find he’s employed in the same industry in a nearby town. To cap it off, the owners of that business had family connections to the owners of the business I’d restructured. I suppose he may not have listed the business I’d just rescued on his CV but since it was his first foray into that industry if that was the case then it means two businesses took him into a senior role with no experience in their area of operation. And without testing the rest of his resume.
I warned his new employers and evidently they got rid of him. Then a few months later I find he’s handing out business cards announcing he’s now CEO of yet another company in the same industry. So no reference checking again.
At that point I gave up. If employers are going to be that slack, then they really ought not to be in business anyway and if he succeeds in making off with a sufficiently large amount of money (otherwise the police, it seems, can barely be bothered prosecuting) perhaps he’ll finally end up behind bars where he belongs.
Vote:January 25th, 2013 at 3:02 pm
It really pisses me off that the National government has done nothing about this. I have just gone through the wringer to get an immigration application approved for an employee, it was a complete fucking drama, completely pointless, expensive, and makes me want to never employ someone again.
The problem is that the government only cares about process. There’s no thought spared to things like merit, or intent, or basic common sense. It matters not whether the employee is a lying, thieving scumbag who intended to rip the system from day one. That’s irrelevant. All that matters is whether the employer followed the byzantine process that the govt says they must follow.
Vote:January 25th, 2013 at 3:07 pm
On another note, I once got asked to remove an electrical box from the wall in an office (I’m a network engineer, not an electrician). I asked if it was live and was told that it had been disabled, and was safe to remove. I decided that I didn’t feel like trusting my life to what this person said, so I called in a sparky anyway.
Turns out the box was in fact live, and sparky said I would likely have been killed if I’d touched the thing with a screwdriver.
Scary shit.
Vote:January 25th, 2013 at 3:20 pm
All3 sides here are at fault
ERA for dumb arse decision and not punishing lying worker who mearly killed a fellow employee
Employer for not reference checking better( although I have been caught when the reference was in cohots with the employee)
Worker for lying and as others have said should on the next plane back to SA
Vote:January 25th, 2013 at 3:32 pm
This is one of the reasons I decided to never employ anyone. I am in a position to; my business exports NZ made software, and relies on just my wife and I. We’ve done well (considering the stupid NZ$ rate) and could have easily employed kiwis to do things.
Vote:January 25th, 2013 at 3:45 pm
Rex and others,
The employer may bear some of the blame, but they have already paid for that mistake in lost productivity and other possible damages to their business. Their own fault and they have already paid for it.
There is no need for them to further compensate a dishonest and incompetent employee for “distress compensation”. That’s completely bonkers. Look at this side-on and you’ll see that it is a case of dishonesty being rewarded and good faith being penalised.
One could also argue that the employee should return their salary for misrepresenting themselves for financial gain. But in this case neither side should be compensated.
Vote:January 25th, 2013 at 3:49 pm
Some years back, an engineer employed by Wellington Hospital arranged a maintenance shutdown of the oxygen network on a Sunday but neglected to tell the wards, so they could have oxygen cylinders handy. He got the boot, but fortunately there was no shonky Employment Relations Authority to take pity on him.
In the current case the employer got off lightly at $10k. Arguably he should be facing east and praying 5 times a day. If the apprentice got fried it would have cost the employer a hefty 6 figure sum all up.
Vote:January 25th, 2013 at 3:57 pm
RRM at 12.29 is spot on.
Vote:I have found, to my personal cost, that employing South Africans is too much risk. There are a few absolutely wonderful Japies out there, but there are also a huge number of scumbags.
January 25th, 2013 at 4:49 pm
All I can presume is that the reported facts are incorrect as no reasonable minded person could ever come to this judgement.
Vote:January 25th, 2013 at 5:32 pm
Jim says:
Oh, totally agree. Apologies if my comment above makes it sound like I support the outcome of this fatuous process.
Vote: