How could an employer get it so wrong?

A New Zealand company placed an advertisement on a (Chinese) website seeking to employ a “full time part time Warehouse Worker” in October 2014.  As there were no suitable applicants, the company re-advertised in December: “Warehouse Worker… (best if have working experience in a farm) 50 years and below, salary negotiable, 8 hours per day, 6 days per week, if good performance can apply for work permit..”. (Note - it is illegal to employ anyone without the right to work in NZ.)

The company interviewed a person and stated that there would be a trial period of two weeks, during which the wage would be $90.00 per day and after that period, $100.00 per day (this is well below the minimum wage.) The hours of work were 10 – 6.30; the employee started work on 20 December 2014.

On 13 January 2015, the employee found that his mobile phone, wallet and car keys were missing from the lunch room where he had left them.  The employee claimed that the company told him to take two days off work because of his distress.

On 15 January the employee returned to work to be advised that his employment had been terminated as they wanted someone in the 40’s age bracket. The company disputed having given the employee two days off and said that he had “Quit his job”, saying he no longer wanted it.  The employee explained that he suffered from Asperger Syndrome, that he was receiving a benefit from WINZ and was willing to work at a lower rate of pay to cover his car loan repayment.  The company thought it was against the law to employ a person while receiving a WINZ benefit.

The company claimed that when employment was discussed it was explained that the role was of a temporary nature.

The employee took out a personal grievance claiming unjustifiable dismissal and discrimination on the prohibited grounds of age and disability.

The company denied the termination was unjustified or discriminatory - that the employment was subject to either a trial period or on a fixed term basis and the employee resigned voluntarily.

The Authority’s finding on the reasons for the dismissal:

1. The issue of compliance with the Minimum Wage Act and the shortfall has been corrected.

2. Was there a trial period?
A trial period must be recorded in writing and since there was no employment agreement, the employee’s employment was not subject to a valid trial period.

3. Was the employment subject to a fixed term agreement?
There was nothing in writing to verify this claim; therefore a fixed term did not apply.

4. Was the employee unjustifiably dismissed?
There were four reasons given by the company for dismissal

(a) Poor performance
There was no evidence of a formal disciplinary process.

(b) The temporary nature of employment
The employee worked full time (8 hour) working days; therefore a regular pattern of work was performed; there was no mention in the initial advertisement of a temporary position; the advertisement stated “if good performance can apply for work permit” indicating mutual expectation of continuity of employment, all indicating that the employment was permanent in nature.

(c) The employee’s reaction to the loss of personal property
The employee was clearly distressed by the loss of his personal property; however the company was not justified in relying on the employee’s alleged verbal resignation.  He should have been given a cooling down period before a decision was made to resign.

(d) WINZ claim
 The company took no steps to verify the information or any implication prior to termination of employment. 

5. Discrimination on age
The advertisement and the company’s wanting to replace the employee with someone in their 40’s indicated an ignorance of the discrimination on age, and was a factor in the discussion to dismiss.

6. Discrimination on disability
The company’s reaction to the employee’s receiving a WINZ benefit in relation to his disability (Asperger Syndrome) was a factor in the termination of employment.

Not surprisingly, the Employment Authority found that the employee had been unjustifiably dismissed and discriminated against, and awarded $16,300.00 in compensation and lost wages.

Ignorance or arrogance? Either way, it was expensive and showed shoddy, illegal employment practices.

Paddy Battersby, Battersby HR Consulting,, Tel: 09 838 6338

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