February 2010

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Thorough documentation : good practice, or potential thorn in side?

February 25, 2010 in Workplace quandaries

2c_from_tacoma2c_wash_2c_takes_notes_during_an_intermediate_college_algebra_course_aboard_the_nimitz-class_aircraft_carried_uss_john_c__stennis_28cvn_7429Here’s a really interesting question for both HR professionals and lawyers to ponder.  To document, or not to document? 

The Ohio employer’s law blog has a post this week entitled “How to avoid employee lawsuits”.  There are three tips, the last of which is “Document, document, document”. 

In essence, the advice is that well kept records – particularly minutes of events giving rise to a potential claim, are a sensible way to allow an employer to insulate itself from a potential claim. 

I am personally divided in my views on this issue. 

On one hand, it is, of course, sensible to have an accurate documentary record of events which can be relied upon in the event of litigation.  Often, a timely filenote is a silver bullet against the scuttlebutt of future claims. 

On the other hand, however, I have been involved in a number of cases where a conversation intended to be retained within the management hierarchy of an organisation finds itself recorded, and discovered, by a claimant many months later, giving fuel to an employee action. 

I suppose that the appropriate advice – taking this into account – should be “Document, document, document – but use your discretion”.

British Airways staff get caught on Facebook

February 25, 2010 in Technology

120px-british_airways_747_landing_sfo2c_cropIn what must be yet another reminder to employers and employees alike, 15 staff of British Airways have been suspended for comments made on Facebook around industrial action. 

Employees should – by now, if not before – realise that statements made on a social networking site are “public”, and that disciplinary action can result accordingly.

 

You’re fired because I reckon you’re gay (even though you’re not)

February 25, 2010 in Courts and tribunals

a3f4ex0caw5yf7ncallqmt8caim1713ca0ilq75cae51ezvcajvqtmhca0cb1peca4x408ucaj7s05tca8uslpaca4ca1a1cayoeizdcaz3n9njca5jon1bcah7u1zfcazxqmp0cau2e2ulca82s5eicai60wyuHr.blr reports about a case in which an employee was dismissed because his boss perceived that he was gay.  Here’s the twist:  he wasn’t, but he lost his job anyway. 

The American Court was asked simply to conclude on its jurisdiction to hear the case – which will now proceed.  The question at the core, of course, is whether an employee can proceed for discrimination when, in actual fact, the basis for the discrimination is proven to be unjust. 

There is little doubt that under New Zealand law an employee would be able to proceed under the Humans Rights legislation in a case like this.  What makes the case particularly egregious, however, is the rather brazen way in which the employer maintained its aversion to homosexual employees.

 

 

 

In what must be yet another reminder to employers and employees alike, 15 staff of British Airways have been suspended for comments made on Facebook around industrial action.

 

Employees should – by now, if not before – realise that statements made on a social networking site are “public”, and that disciplinary action can result accordingly.

 

“Anchoring” in mediation : a technique worth considering?

February 18, 2010 in Mediation and settlement

dollarSee if you relate to this scenario. 

You go to mediation, present a carefully thought out opening, and listen assiduously to your opponent’s response. 

Then – before you have even had a chance to go and get a cup of coffee – the mediator walks into your room and tells you that the other side will only settle for a six figure sum. 

Six figures, you say!  What an outrageous and exorbitant claim!  That can never be justified, and we will never pay! 

Sound familiar? 

Well, for anyone who has studied the art of mediation, this is hardly “Getting to Yes”.  For most seasoned employment lawyers, it is also unlikely to be the way that the game is played. 

But an article this week on Work Matters lends an interesting perspective.  The outrageous demand at the outset of mediation may, in fact, be an attempt to “anchor” negotiations at a high level, re-framing the second phase of mediation so that it is all around the claimant’s admittedly outrageous demand. 

For example, after an hour or so of shuttling, if the mediator comes back and says that the claimant has dropped their outrageous claim by $20,000 – that’s a 20% reduction!  Already, they have comprised by one-fifth of what they were seeking before they came here – so now you have to move from your hardened position!
This is not the way that I would recommend parties to act in mediation – but it is an interesting perspective – and one which may stimulate a few comments.

An employee’s right to information : Flogging a Dead Horse

February 18, 2010 in Unions and Collective Bargaining, Workplace policies

flogging_a_dead_horseFlogging a Dead Horse is the name of a compilation album of Sex Pistols’ songs which came out in 1980. 
The album is, of course, named after an idiom which broadly means that a particular line of conversation is finished, and any attempt to continue it is futile.
In the case of the Sex Pistols, the title was apt simply because – despite fans’ desire for more music – the group was finished.  Not long after the album was released Sid Vicious died, and Johnny Rotten took a different musical direction. No point, therefore, in asking for any more. 
In a similar vein, it is quite often difficult for employees to let go of the thought of a workplace in which they have worked – and thrived – for some time.  In a time where redundancy is an unfortunate, but common, end for many, letting go of one’s previous work life can be challenging. But, after a certain point, continuing to pursue an employer is like flogging a dead horse. 
An example of this type of concept is provided by the recent decision of the Employment Relations Authority in Wrigley & Kelly v Massey University (Unreported, Employment Relations Authority, Wellington, 6 January 2010).

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Discrimination : no laughing matter (well, most of the time…)

February 18, 2010 in Human Rights

cazxph4ucac7dgmfcaegbpwacaxpw1g1cagh1wj0cak7vbw5cat031f1ca0ozrbcca1tftz2cajfcrr4cafx0323cavfhv0sca4v7mvucao1ife7caq9txkucamwxguncaa7c4y8ca0qs6h0ca3sh312A recruitment agency in the UK called Jobcentre Plus has been in the news twice over the over last fortnight after controversies over two different job advertisements.   

In the first, the agency refused to run an advertisement seeking “reliable” workers – on the basis that it discriminated against unreliable workers. 

In the second, the agency refused to place an ad for a “junior” hairstylist on the basis that it would be perceived as being aimed at young people thereby discriminating against older applicants. 

While discrimination in employment is a serious issue, surely this is at the “you must be joking” end of the scale?

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