Last week we discussed the Stephen Barclay departure from Kiwibuild and the employment situation that arose from that. This was national news.
Not all employment situations make such a splash in the media but on a slow news day the Dominion Post, Stuff, the Herald plaster large dollar amounts payable by employers across the front page and at the top of their websites. These large dollar amounts pique people’s interest so that the stories get read and clicked on. Stuff/Dominion Post recently featured the headline “ERA awards nearly $30,000 for unjustified dismissal and loss of dignity”.
When you read the article, you find out the parties names and the reporters summary of the facts. There is always, of course, more to the story than a headline and often the headline is very misleading as it acts as click-bait for consumers. When you are one of the lawyers involved in the case or when you review the decision in length, quickly it becomes apparent there were procedural faults or substantive issues. This reveals the pitfalls of taking the case public in an employment dispute process.
One factor to consider before taking a matter to the Employment Relations Authority (“ERA”) – whether as an employee or employer – is what I call (at least for my Wellington-based clients) “the Dom Post factor”. The ERA is a public forum. Your name or organisation’s name will be in a decision that is available on the internet for a long time to come. If it is a slow news day and reporters have space they need to fill they look through the recent reports and publish an article on it. Literally, your case could be front page news (or top of the online newsfeed).
The first stage of avoiding being a headline Employer, having to pay large sums of money to a current or departed employee and having your business exposed for poor business practice is making sure you have the basics right. It still surprises me how frequently the large awards or penalties are due to employers not doing the simple things and failing to spend a relatively short period with an employment lawyer to get things right..
If you are an employer, ask yourself:
– Do you have a signed employment agreement for each employee?
– Do you have a code of conduct or policies that make clear what is expected of employees?
– If you are going through a performance management process or disciplinary process, do you understand the process that needs to be followed?
If you answered no to any of those questions, calling me needs to go on the top of your to-do list. Getting legal advice should not be the ambulance at the bottom of the cliff (though of course, we are there for that too when needed), when working with employers I much prefer to partner with them to understand their needs and assist in mitigating legal risk in the early stages, to help keep your name off the front page.