The first 90 day trial period case has been heard in the Employment Court, which has found that young pharmacy worker, Heather Smith was unjustifiably dismissed by her employer (due to a failure to comply with the contracting requirements of the Employment Relations Act), and the employer failed to treat her in good faith or to comply with her employment agreement.
The Employment Court says this gives Heather several grounds for compensation for the appalling way she was treated.
However, the President of the CTU, Helen Kelly warns that :
“This law was rushed through Parliament without a proper select committee process and therefore has to some extent failed to achieve what the Government set out to do, creating a high risk for employers that have already sacked workers unfairly under the scheme. The Government intended to allow the reckless dismissal of workers without reasons and without giving reasons. What the Court has found is that the Good Faith requirements prevail and while an employer still may not have to have reasons, where they do, and where they are considering dismissing someone – they will need to tell them.”
“Heather’s employers relied on the law to completely indemnify them from any standards of decent employment practice. They have been found to not only have breached good faith requirements but even the terms of the employment agreement they entered into her with.”
“The disgraceful thing is that the policy intention of the Government is to remove from Heather and every other worker employed on a 90 day agreement the right to take a case against unfair dismissal.”
“While this decision is a real victory for Heather and justifies our decision to stick by workers like her, the Court decision still makes it clear that where employers get it right, and form and perform contracts correctly, this new law will still enable dismissals as unfair as Heather’s to go unchallenged.”
Pleased for Heather, but not pleased about all of the other workers who will be unfairly dismissed under the government’s plan to extend the 90 day trial to all workplaces.
Mind you, the other Heather (Roy) might be out on her ear, according to TVNZ news tonight.
YES! Ha ha in your face tories – her complaint MUST have been LEGITMATE for her to have won! Woo hoo!
!!!!!!!!!!!!!
Again, I just fail to understand why people support the 90days bill unless they personally have something to gain from it. It defies logic to me – because as someone way more famous and smarter than me has said – society is judged by how it treats its most vulnerable – well, nice one John – this bill is an appalling way to treat our most vulnerable in the workforce – those who are new to a job. So much to be proud of as a kiwi…yeah right
Umm… Darien ‘ear’ not air.
I didn’t even see that!
I know Heather and used to work for the prior owners of the pharmacy. The new owners are not very pleasant and Heather is well out of there. It is fantastic that Heather has won her case but I do not agree that anyone who supports the bill is a bad person. The concept works for employees of ethical employers. I have friends who run their own businesses who have found it beneficial because it meant that they were able to take risks with hiring staff rather than being stuck with staff who are unsuited to their position due to the inability to fire staff without the risk of being taken to employment court (One friend was despite the fact that the employee smoked drugs at work and assaulted a manager) The employers I know have taken the risk with staff and found great employees they would never had considered under the old laws. However in saying this , all employers are not like my friends and like Heathers bosses will take advantage of the 90 day law. there really needs to be a middle ground, one in which staff can be let go if unsuitable but in which the employee can not be taken advantage of. Another twisty proplem with no current solution
Isn’t this simply an example of the safeguards put in place with 90 day trial working? There are employers who don’t understand the law or are unscrupulous hence the safeguards…
No it isn’t.
The 90 day right to fire removes the right to pursue an unfair dismissal court case like Heather just won.
Unless the employer is so incompetent that you get them on another technicality.
90 Loota:
The 90 day right to fire removes the right to pursue an unfair dismissal court case like Heather just won.
So are you saying this all happend before the 90 Day rule came in, if this is the case then the Union and Labour are making things up. As they made it sound like it happend under the new 90 day law change.
From the commentary I have read, Heather won her case because her employers were lax about following a number of other requirements required by the ERA. If they had paid more attention to the details required by the ERA Heather would have been gone with no case to be heard as the 90 day law (small business) applied to her.
Send a submission on these dreadful laws – it is easy to do here http://fairness.org.nz/onlinesubmissioner
Helen, what is so dreadful about removing a barrier to an employer giving someone a chance to prove themselves in the workplace?
What barrier? There was never any barriers around giving people a trial run and a fair dismissal!
I think someone needs to proof read for Ms Kelly a bit better
“they entered into her with”
I dont think they entered into heather with anything.
Doug, if the right remains post law change the real question is not “so it works then cos it has safeguards” but rather did we need it in the first place.
Spud the barrier was that once hired it is difficult & very costly both in time & money to exit an unsuitable/ under performing employee. 90 day trial reduces the risk of giving someone a shot. While open to abuse a la Heather, there are safeguards built in. As with all things, some people will break the law and will suffer the consequences
@concerned : there are no safeguards built in. The only reason Heather’s case succeeded is because her employer didn’t apply the law properly. People often argue employment rights are a barrier – the question is where you draw the line on the rights of employer and employee.
I was wondering, if I read it correctly, that this case will simply make employers close their mouths and say nothing at all. Dismiss, begone, thanks for coming.
Well surely if someone is a bad employee then it could be proven.
Isn’t good faith a safeguard? I happen to be an employer who gave a person a shot under 90 day trial. The person would not have been given one without it. I fail to see the problem with this.
Given you have my email address and I have been on here awhile, couldnt someone drop me a quick line to say why I am in moderation and why my posts are being deleted?
concerned would you have hired someone else or no one else but for the 90 day trial?
I fully support this young woman and am very happy with her victory, not just against her former employer but also the evil that is government employment policy at the moment, as a senior union delegate in the company I work for I am fighting hard to give those I represent as much protection as I can. To all union delegates out there fight with everything you have and hold all employers accountable, and remember that next year we have a chance to affect change in the house.
@Andrea: “there really needs to be a middle ground, one in which staff can be let go if unsuitable but in which the employee can not be taken advantage of. Another twisty proplem with no current solution.”
Something I suspect a Supreme Court precedent will eventually answer. Some years back, there was a courtroom precedent where a group of cleaners won a case against their management, after they were “contractorised” so that the company involved could wriggle out of holiday and sick leave provisions, among other working conditions.