In my in-box today, more stories about abuses of the 90 day no rights law.
I’m sharing one of them, as hopefully, it might stimulate some discussion about the realities of what the government has imposed on ordinary NZ workers. I’m hoping that the Kiwi values of fairness and justice might activate some real concern about what is being unleashed on New Zealand’s workforce.
James (not his real name) was previously working on a 6 month job scheme. He had been there 5 ½ months when Work and Income found him a full time job. The first afternoon at his work he had an accident – he squashed his finger between a log and a concrete wall, resulting in two breaks. He nearly lost his finger, but surgeons managed to save it.
James was given a medical certificate for one week and there was a verbal agreement with his employer that he could go on light duties until the injury was healed. James was told he would be trained for the retail side of work as long as he got a medical certificate.
James’ GP gave him a medical certificate for 6 weeks light duties. When he handed in this certificate to his employer, he was told “sorry – we need someone in the mill,” and he was laid off.
His letter of dismissal says that :
“As you are unavailable to resume full duties….. and are in your three month trial period, I am unable to hold your position for that lenght of time due to production demands in the factory.”
Next day, the job that James could have done was advertised in the newspaper.
Funny thing : James didn’t sign any contract agreeing to a 90 day trial period. Yes, there’s a legal argument about James’ situation. He could pursue it legally, if he can gather the resources and legal costs involved.
But the question is how does he feed his family until he finds other work?
James is highly motivated to find work in his community where unemployment is high. He’s not unreasonable. In fact, he was really pleased to get off a work scheme and into a genuine job.
But his employer exposed him to injury on his first day of work and James is paying the price.
Bottom line, the 90 day no rights period gives his employer an out and unless James is determined, unless James can jump through legal hoops, unless James can convince Work and Income and ACC that his case is legitimate, he and his family will bear the cost.
This isn’t fair.
what a shame!I am ashamed to call myself a New Zealander-ok,I’m not being a rationalist here however there will be more people on the breadline-a child eats cockroaches, our elderly eating petfood. There are families that I know who are really desperate…and the stories they tell…well you can use your imagination.
You say right there that James was legally wronged and can jump through legal hoops.
My sister was fired wrongly three years ago when Labour was in government. The employer made up an excuse that really didn’t stack up. Same thing – a job in another part of the business opened up, she wasn’t offered it. She jumped through the legal hoops, got a payout, and eventually found another job.
I’m not sure what the difference is – sure the employer used the 90 day thing as an excuse here, but by the sounds of it that’s not a valid/legal reason to let him go in this case.
Hi there Ian; shouldn’t have happened for your sister either. All awful and I want to see these abuses stopped.
Yep this will likely not be the first or last time this is going to occur, with a National govt stil in power.
Bleep me!
Pet food? 
Cockroaches? 
!
NO, it’s not bleepin fair that this poor dude gets injured and then his liar of a boss, who said he could do light duties fires him after he has gone to the time and expense of getting a medical certificate!
Is the employer prepared to say the worker was injured on the job and could not perform it for medical reasons – iof so does not ACC have to cover him for at least 6 weeks (regardless of whether employment continued on)?
If there is exclusion of ACC cover during the 90 days, can the employee not sue the employer for unsafe work practice during the 90 days?
To those speaking baout legal recourse, are you aware what it costs? I assume you are because your sister pursued her rights. However it costs money to have your legal rights upheld and I doubt james has that money. My partner was made redundant, legally arguable. BUT her employer knew she didnt have another job to go to and so played very hardball promising to take it all the way to the Tribunal. We couldnt afford those costs. Yes, we got a settlement but it was nothing like what was owed.
Sad to hear, I support the 90 day trial period but do not support bad employers.
I find your remark that he has a legal avenue for redress (and he does!) but he will not pursue it due to costs a cop-out.
‘James’ needs to either go to the community law centre or call them to get a list of employment lawyers (preferably one who will only take a commission upon success), before making a claim for abuse if due process.
In NZ we have developed a legal system and employment law context which by-in-large protects the employee. In fact most small business’s have $5000 stashed away to pay off an employee who makes a claim against them as this is cheaper and easier than defending their reputation!
Anywho – I hope ‘james’ does follow this up as I want the 90 day trial to be a success and this will only happen if those employers who abuse the scheme are punished.
I’m dealing with a similiar situation with my younger brother, he is a builder and has been told he is on the 90 day trial, yet he has signed no contract and his work is downsizing – it will be interesting if they lay him off as I will be seeking blood.
Another notes that it is widely assumed on this blog that all employers are ‘evil tories’ yet it is a case of the usual 5% who bring the otter 95% down. I argue that this is the same with employees – there are those who purposefully abuse the system and end up destroying small business’s as it is very difficult to remove them.
What a pity James didn’t belong to a union that could be bothered sticking up for his legal rights.
Yes you are right Darian there is very clear legal argument here. This is a poor example and a stupid employer, hardly an indictment on the 90 day system.
You have totally misrepresented the legal situation in his circumstances there is every chance he would qualify for legal aide, which is a simple form and I have every confidence one solicitors letter would quickly bring about a result. There is very clear case law that unless an employee is presented with an agreement prior to commencing employment then the employer is unable to rely upon the provision.
Depending on where he is based I’d almost be prepared to act for him just to prove my point!
This has nothing to do with the 90 day law other than the fact that the employer used this as an excuse (illegally).
So its a FAIL in that regard as being an example.
The process is easy and simply and very inexpensive to do thru.
I agree that its sad that he will be without work etc in the meantime, but that is why we have the system – to have rights back against bad employers. As this one sounds to be.
But – again – nothing to do with the 90 day law, and there were bad employers when labour were in government as well.
Bad employers will flaunt whatever law you put in front of them. It happened before the 90 day bill, it will happen while we’ve got it, and we’ll still have this kind of thing happening when it’s replaced.
Darian,
This cannot be all the information. If the contract is not signed the employer cannot use the 90 Day rule.
ACC will pay for the next 6 weeks, this will be plenty of time to have your constituents rights sorted. Please keep us informed as to how successful you are.
Has James applied for the retail job that he wanted, he need only apply from the ad and see what results? Maybe the employer wants to see his level of commitment.
Good on you Ben – I’m awaiting my admission date or else I would have offered my services aswell.
In fact the more I think about it, the fact that James is reluctant to seek legal advice makes me wonder if there is more to the story…
I’m sorry but I can’t help being skeptical as if the facts are true he has a strong legal case.
I’ve already said there’s a legal case – and Mike, James is not reluctant to seek advice – which is how his situation ended up on my desk. The point is that some employers are using the 90 day law as an excuse to fire people under the most dodgy of circumstances. And if James’ employer had got the paperwork right, there wouldn’t be a legal case anyway.
@David Gower – James was on ACC but it was based on the previous pay from the work scheme, so it’s 80% of not very much. He is considering legal action and has support for that if he wants, but James’ focus is on getting another job and supporting his family and good on him. Lots of people don’t want to go down the path of a legal battle because it’s so hard. James works in a smallish town, and often when you take the employer on, word gets round to other employers and the job hunt becomes even harder.
Darien, I see I misspelled your name, apologies for that.
So this is a story about what might have happened if the 90 day rule was agreed to by both parties prior to employment ?
In a small town it is often good for the employer to be called out as a poor employer too!!
Why does ACC pay 80% of the previous job as opposed to the current job? That is new to me.
Was there an OSH investigation conducted by the DOL given he suffered a serious harm injury? Again more legal recourse for the employer not having adequate safety systems. Sounds like this employer could be toast!
Ben
If James applied for legal aid, would he have to pay it back? Is there any compunction for him to repay his legal aid should he succeed and get some kind of pay out? Conversely does it sit as a debt to him if he doesnt win, or doesnt win enough?
I was in the District Court recently (criminal) and was interested in how the legal system might differ from Criminal to Civil.
I agree with you Mike, 5% make a bad name for the rest on all sides of an issue or category.
For those of you who think it’s absurd that someone who sounds liek they have a good legal case wouldnt pursue it, I can assure you people all over this nation have very good legal principle on their side and no money with which to pursue it.
As good as our system is, you still have to have the wearwithall to pursue justice
@ Tracey
Section 15(2) provides that every (criminal or civil) grant of legal aid “is subject to the condition that the aided person must pay to the Agency a repayment calculated in accordance with section 18”.
Certain grants are totally or partially exempt generally domestic / family etc…
The repayment condition is not confined to situations where there are proceeds of proceedings. S
If there are proceeds of proceedings (as defined in s 4(1)) that equal or exceed the cost of services (also defined in s 4(1)), the repayment payable is the cost of services minus any interim repayment paid (see s 17) and any deductions allowed by the Agency (see s 37).
If the proceeds of proceedings are less than the cost of services, the repayment payable is the proceeds of proceedings plus the prescribed repayment amount (see regs 10-12 of the Legal Services Regulations 2006), minus (i) the amount (if any) by which the subtotal exceeds the cost of services, (ii) any interim repayments, and (iii) any deductions allowed.
If there are no proceeds of proceedings, the repayment payable is the lesser of (i) the cost of services minus any interim repayments and deductions allowed and (ii) the prescribed repayment amount minus any interim repayments and deductions allowed.
Deductions under s 37
It is really only at the end of a case that the aided person/provider and Agency can consider the serious hardship and other write-off criteria in s 37. It may be that the aided person’s financial position is worse, or they may have been prepared to settle for less than they were entitled to, or the other party’s conduct may have prolonged the litigation. These things will not be known at the outset, but they will affect the usual cost recovery ethos.
For example, where aid is granted for an employment claim an interim repayment of $1,300 might be set and paid, and the cost of services might come to $5,000. A deduction of $2,000 might be allowed because of the applicant’s conduct in settling the case promptly at mediation for less than could perhaps have been obtained in the Employment Relations Authority. So a further $1,700 would be required from the settlement (which the provider is required to hold back under s 68).
If the case had settled at mediation with only an “expression of regret” from the employer, the result would be the same, so long as the prescribed repayment amount is the same as or higher than the cost of services. If it is lower, then the repayment payable will be lower.
Thanks Ben, appreciated.
Try doing over 18 hour cleaning and getting paid just over $136.00. Employer doesn’t appear interested in sorting out and Labour Dept to date have done nothing. So where from here.?
This is really crap…How do you feed your family, pay rent, power on the acc he was getting.. a piddly 37 dollars last week a big 17 dollars this week.wow dont leave town could have big party with all that money..what a load of shit….they need o do something and do it fast you can not live that way…..
If James injured himself through personal negligence, after training, the employer is NOT responsible for that. The employment relationship is a good faith relationship on the part of BOTH employer and employee. If James was employed for one day only and then unable to to work for 6 weeks…how is it fair or reasonable that James expect the employer hold his job for him or provide alternative work when James was hired for the Mill? As James was not in actual employment prior to the one day and only on a training scheme…then his situation has not changed significantly and ACC for 6 weeks is six weeks to find another job and still better than the dole. Seems like there’s a lot of holes in James’s story. Not to mention that there are plenty of people out there more than willing to risk a small injury to get the ‘big mediation payout’ – The reason employers employ people is because they actually need them to work. All those commenters who feel James is ‘owed’ are exactly why businesses in NZ struggle and employers are gun shy of hiring those on schemes or unemployed. Going to mediation is not expensive if you have a case and have been genuinely wronged by an employer, there would definitely be legal aid help for James so the fact that he has not taken this option suggests he knows he has no case. Exploitation of the employment contracts act by employees far exceeds the number of ‘bad employers’ and is crippling this country…thank God for the 90 day clause…it means people will be given a chance they otherwise wouldn’t have got…although as other posters have said this example is not really a 90 day trial one.
I have heard shocking stories re workers on S.I. diary farms being worked almost to death by managers during this 90 day period.
90 day survival trial! It leaves it up to the individual employer. We only hear about stories of the nice guys whos business are flush with cash. If some kid gets a job with a desperate business man looking to cut costs any way he can look out.
The nats want to separate us from each other so that the big powerful business owners can do what ever they want with us.
Its stupid really because the whole eonomy suffers when they do.
Selfish monkeys with money.
Its deplorable no doubt about it but would Labour repeal the 90 day law if they came to power? Personally I doubt it.
Labour watered down the Employment Contracts Act but did not scrap it.
Lets be honest, if Labour wants to be taken seriously by middle and working class New Zealand it needs to remember who it represents and undo the damage that began with the Lange/Douglas government back in the 80′s.