National Blog of New Zealand

As it stands employees can bring a ‘personal grievance’ where they are unjustifiably dismissed, that is, dismissed outside of how a fair and reasonable employer as objectively assessed would act. This means that a reason for dismissal should be given as well as proper procedures followed, it’s a bit of a legal minefield for small business.

Dr Wayne Mapp’s Employment (Probation) Bill 2008 being passed under urgency proposes to abolish this protection where both employer and employee agree to do so. As we all know employment negotiations don’t always play out on an even pitch therefore it’s likely the probation period will become standard boilerplate given to employees from now on. Especially for unskilled labour who often benefit the most from union assistance (for which dismissal for association will no longer constitute a personal grievance in the probation period) as opposed to those capable of negotiating their own contracts.

To dispel some of the misinformation floating around, there will be no constant firing and rehiring of employees as the Bill will only allow one probabtion period per employer-employee relationship. Although in my opinion the hire-fire scenario would be unlikely given the negative impact this would have upon the employment relationship dynamic and the economic cost of the resultant high staff turnover. It is also only applicable to businesses which employ less than 20 staff, those likely to recognise the importance of good staff and to be most hurt by a less than suitable employee bringing a grievance. The Bill will remove access to employment mediation services, however employees can still avail themselves of the Human Rights Act 1993 if they feel they have been unfairly discriminated against.

I find little weight in the argument that this Bill needed to be passed under urgency, perhaps it’s only real function is to herald a change in the process of government. It may have already been assessed under the previous government but this does not mean any adjustments should be exempt from review. I for one can’t see the large impetus for passing this under urgency, it’s painted as a Bill to help employees by allowing employers to take a ‘risk-free’ chance on them, and by the same token assist employers by letting them vett potential employees for a lengthy period - what’s the big hurry?

No industry where it takes three months to assess employee suitability springs to mind, and therefore this seems to be an overly lengthy time period.  Job stability is a socially important goal allowing people to plan into the future, three months is but a pinprick in eternity but reducing the time period to one month (the usual maximum pay period) seems to strike a better balance.

Small business is an important part of our economy and does often run on very slim margins, so protections need to be afforded to those who choose to run such businesses - but only insofar as they do not erode the rights workers have fought tooth and nail for.

The real issue I take with this Bill is that it means employers can act in an unfair and unreasonable fashion, or at the very least not be required to act in a fair and reasonable one. Yet for many small businesses doing so and showing they have done so can be a tricky process that is perhaps slated against them from the beginning, let’s trial it - if it’s abused and the subject of well founded complaints then lets revert back. Given what I predict will be the minimal impact of this legislation it comes across as just a bit of tinkering, unless you like slippery slope argument.