These posts have featured in Phillip's monthly That Figures columns in the Star, Dunedin's community newspaper
Friday November 29th, 2013
These are the posts up until November - In future we will put them up once they have appeared in the Star to make them easier to find.
What should you do when you become aware of a problem at work?
Experience shows if you think there is something wrong, trust
your instincts, you may be right. This applies whether you are a manager or a staff member confronted with a problem.
What you then decide to do and how you go about it can have serious consequences. Your actions can be reviewed later. Your response must meet two key legal tests. These apply to all employment relationship problems that come under the Employment Relations Act 2000.
The tests apply to employer and employee alike. They are:
to always act toward each other in good faith which includes being open and communicative and raising problems early; and
to be fair and reasonable in responding to and making decisions about issues and problems in the workplace.
If you know someone who has come to you with a problem and you want to help, share by listening without judging and then talk it over together, confidentially.
This applies equally to management and staff. Help get the facts right and then decide how to deal with the problem and how to best go about raising it in an appropriate manner. Too often this is not done in a cautious and considered way.
Be careful what you say and who you say it to. It could be misinterpreted and misunderstandings can lead to time-consuming and expensive legal proceedings.
If no one around can help, put off immediately saying or doing anything. Talk it over with a person who is sensible and trustworthy. A partner or friend is great for support, but get proper advice if you need it.
Don't put things off and let problems get a life of their own.
More on Raising Problems
Last month I went over what to do if you feel there is a problem in the workplace. After getting your facts right and having a private talk with someone about what to do it is time to raise the matter.
Your right to raise the problem is recognised in law. Under the Employment Relations Act 2000 it is generally defined as an "employment relationship problem". This applies to issues both employees and employers may be concerned about and wish to raise with each other.
To raise a problem effectively first decide who best to approach. It is also very important how you go about it. Ask yourself if you are going to the right person. You need to bring the matter to the attention of someone who has the authority to deal with it.
In most cases staff should approach their immediate supervisor or manager. Sometimes it may be a complicated matter involving that person or you may not have made progress with them and need to escalate it to a higher authority in the organisation.
Check employment agreement wording about employment relationship problem processes. Also check any company handbooks or house rules, codes of conduct etc. that might set out the process to follow.
You should seek advice and are entitled to have a person accompany you to any meeting to provide support or advocate your case for you.
Specialist employment advice may be required to prepare for and run the meeting. This is strongly recommended for both employers and employees if the problem is of a serious nature such as work performance or disciplinary matters.
Both parties may arrange to have representatives present at such meetings, especially when personal grievances and legal disputes about employment rights are likely to be discussed.
There are some rules about raising such matters and the duty of good faith applies. Be clear before the meeting what the agenda is. Each party should be able to inform the other party in advance what they intend to discuss.
This month I am covering the information that should be kept to successfully discuss and settle problems in the workplace.
Barb (name changed) came to us with a problem. We needed to make sure she could refer to accurate records of past actions and events that occurred and any changes to her employment by Steve (name changed).
Here is a brief list of what every employer and employee should keep a record of. It's roughly in the order of when these come up:
1. job advertisement
2. job interview notes
3. letter of appointment
4. employment agreement
5. job description/person specification
6. house rules including any internal problem solving processes
7. dates of any agreed changes to terms and conditions of employment written or verbal
8. performance review/performance management documents
9. note or letters raising grievances or disciplinary issues
10.work performance or disciplinary warnings
11.work performance or disciplinary meeting minutes
12.resignation or termination letters
These records provide key facts about what was offered and agreed at the start of the employment relationship. If Barb and Steve didn’t have a shared record of what was agreed it's almost certain there might be trouble later. Here's why:
Under the Employment Relations Act, a copy of an intended employment agreement must be provided by an employer to any employee before starting the job. Steve risks a penalty of up to $10,000 for not doing so!
Numbers 4 to 6 on the list describe how the employment relationship has to operate in terms of expectations regarding behaviour, dealing with problems and monitoring work performance.
At work performance meetings or discussions, always take notes and date them. If there is a problem later both parties need to prove what communication took place and when.
The last four items (9 -12) on the list are about process. Record keeping when notifying grievances and disciplinary issues is essential. A grievance may escalate to the Employment Relations Authority or the Court where these processes will be reviewed for fairness and reasonableness.
This month I want to cover a technical term: Good faith.
It is very important term because all communication at work can be reviewed and tested against the good faith rules later. Especially when a problem or a dispute comes up.
Most people in dispute focus get caught up in the conflict that comes with raising a problem. It can get very heated with win at all costs attitudes taking over. However they treat each other, the good faith section of the ER Act will be applied. It requires that all parties to employment relationships:
"must not, whether directly or indirectly, do anything—
(i) to mislead or deceive each other; or
(ii) that is likely to mislead or deceive each other".
Good faith also:
"requires the parties to an employment relationship to be
active and constructive in establishing and maintaining
a productive employment relationship in which the parties
are, among other things, responsive and communicative."
The prohibition on misleading and deceiving is clear, it requires openness and truthfulness.
Responsive and communicative behaviour means not holding back information or intentions that might affect the other party.
There is a requirement to be open and prompt about providing information important to the other party.
This is especially the case where a problem arises because something on one party's mind has not been put to the other party for comment or explanation. This is a very common problem in disciplinary and dismissal cases where one party is not open with the other.
Untruthful replies by employees and a lack of openness from employers at disciplinary interviews are two examples regularly identified and punished in decisions of the Employment Relations Authority and the Court.
That is why accuracy and proper process are absolutely important.
Ambush or predetermination are not acceptable.
Access to advice and representation essential in the workplace
A couple of months ago I covered the need to keep written records about changes to work conditions.
It is also important to have the right people involved at the time important discussions and meetings take place.
Have the right people involved so they can be brought in to provide advice and representation and also relied on later to provide their recollections. This is especially important in meetings or discussions about five of the areas I referred to back in April:
1. dates of any agreed changes to terms and conditions of employment, written or verbal
2. performance review/performance management documents
3. note or letters raising grievances or disciplinary issues
4. work performance or disciplinary warnings
5. work performance or disciplinary meeting minutes
Under employment law rules it is a requirement that employers give employees advance notice of any meetings so they can arrange to have a representative present. There is also an obligation to inform the employee what the meeting is about to allow sufficient time to prepare for the meeting.
The next step is to prepare for the meeting.
All employees and employers have a right under the Employment Relations Act to appoint a representative. This should be an expert in industrial relations with some practical knowledge of the workplace and employment law. This is recommended if the meeting is going to cover 3,4 and 5 above.
A less formal approach can be taken by having a person accompany an employee to less serious meetings. This must be a person the employee has freely chosen, not the employer.
A witness is a person acceptable to both parties who is present when any of the matters on the list are being dealt with.
Making these arrangements for representation or support is important as it goes to whether an employer has been acting in a fair and reasonable manner.
This can be a very important issue if any issues arise out of decisions affecting these five areas causes problems later. This is often the case with concerns employers have about repeated work performance problems or employees not believing they have been dealt with fairly.
The best evidence of what happened is from the people present at the time and the notes they made at the time. Therefore it is very important to agree on record keeping and follow up correspondence to confirm what was agreed or decided.
Minutes of meetings and follow up letters should be checked and corrected if they don’t fully and accurately cover what was discussed and agreed. It is good practice for employers to give employees sufficient opportunity to check and confirm minutes. It is not good practice to demand they sign anything at the end of the meeting unless they have had sufficient time to check with their representative (if present) or seek advice.
Putting things off makes things worse!
In recent months I have written about communication at work, especially when there are work performance problems or breakdowns in the relationship between employer and employee. Sometimes advisors and mediators get involved.
Rather than looking at who is at fault, employment advisors and mediators try to find out what has been going on.
The most direct and valuable assessment requires evaluating the communication employee and employer have had on any given employment problem. To do this, employment advisors and mediators take a special approach, following principles set down by those courts which deal with employment matters.
Each new ruling of the courts is applied to update interpretation of earlier rules.
The key test to be followed and applied reviews the conduct of the parties against the good faith requirements of the Employment Relations Act 2000.
The key definitions of good faith involve being open and communicative and not engaging in misleading and deceptive conduct.
The development of the obligations of good faith has resulted in rules for employers and employees to follow when they communicate with each other. What the Court keeps saying is timeliness is crucial.
This makes sense for a number of reasons on both sides of the employment relationship.
Employers cannot hold back and not raise problems and then unload them all at once at a later date. This is considered unfair and not in keeping with good faith. Such behaviour is most likely to be challenged by an employee taking a personal grievance.
In the same way, employees cannot hold back and not raise problems and expect to be taken seriously months later. Nor can they agree to and sign warnings or accept other changes to their conditions of employment without raising their objections clearly and promptly at the time.
The personal grievance procedure requires that any personal grievance for disadvantage or for unjustified dismissal must be raised with 90 days of the employee becoming aware of the problem.
Both employers and employees should realise good faith rules will also be applied to whether or not they have delayed. If delay does occur it is highly likely to raise questions about whether a party has been open and communicative with the other.
Don’t sign anything!
Workplace documentation is always about one party’s rights over the other involving power and money.
The best advice to both employers and employees is do not sign anything without taking advice. It is the legal requirement for individual employment agreements covering non-union staff. Employees should be allowed time to get advice before signing an agreement, especially in the case of trial periods.
Employees may be asked to sign new documents which are contentious. This is especially the case if the new document intends to change the terms of employment.
Caution is needed when employees are asked to sign a warning by their employer. If an employer is issuing a warning they are going to do it anyway.
What is the purpose of requiring the employee’s signature on the warning? Why would an employee ever agree to sign? Would signing mean the employee is agreeing to and accepting the warning? Does the signature mean he or she will not take a personal grievance? Or is the employee just confirming they have read and taken possession of a copy of the warning?
Hardly clear, is it?
These signing requirements are at best unclear and at worst intended to mislead and disempower workers and therefore should always be rejected.
Meeting minutes are similar. Every party to a meeting is entitled to stick to their view of what they said and what they heard and not be required to agree to or accept the record of another party.
When requests to sign minutes of disciplinary meetings and work performance meetings are made the employee always has the right to refuse to sign.
End of employment documents such as notices of termination, resignation and records of settlement should never be signed unless checked by an advisor. The person signing must understand what they are agreeing to and whether signing means they have settled all matters including disputes, claims and personal grievances. They may be signing an agreement to drop future claims.
Exit forms. - Filling out and signing exit forms should only ever be done if the employment has ended on a positive note. There is no legal requirement to complete them and it is unwise to fill one out if there is likely to be outstanding matters or issues arising from why the employment ended.
- This opinion piece from Phillip was published in the Hawkes Bay Times in July 2015 Opposition grows to health and safety reform “monster”, says employment relations specialist Phillip de Wattignar 09/09/2015
- This opinion piece appeared in the Otago Daily Times on April 10 2015 and drew favourable mention in political commentator Bryce Edwards’ column in the New Zealand Herald 09/09/2015
- This is Phillip’s three-part series on workplace bullying which featured in the Star in May, June and July – if you forgot to cut them out of the paper, here they all are for easy reference. 11/07/2014
- Updating the That Figures columns 11/05/2014
- As promised (threatened) Elspeth has been delving into other things 04/12/2013
- These posts have featured in Phillip's monthly That Figures columns in the Star, Dunedin's community newspaper 29/11/2013
- Appeal in Kiwisaver minimum wage case dismissed 24/09/2013
- Better pay for rest home workers.....closer to reality now? 10/09/2013
- All workers should be concerned about proposed Employment Relations Act amendments 28/05/2013
- The back to the future approach to health and safety won't work 11/04/2013
- Is the point still being missed on Novopay? 20/03/2013
- Overpayment and Novopay 20/03/2013
- Enthusiasm is not always a good thing………..more on Novopay 20/03/2013
- And another minimum wage issue which hasn't been put to bed yet..... 06/03/2013
- Minimum wage workers and Kiwisaver............. the saga continues. 27/02/2013
- Novapay Comment 31/01/2013