The abuse of farm workers is sickeningly common. Some farm managers and owners act as if they were back in feudal times, where employees were property and their bosses could mistreat them as much as they wanted.

In a recent case a shepherd who was recovering from a heart attack was fired. Before the shepherd was fired he had repeatedly tried to talk to his employer about coming back to work, The employer then dismissed the shepherd, without even meeting with him. The employer said it dismissed the employee because it had decided he would take too long to come back to work. On the day the shepherd was terminated he was cleared by his doctor to return to work. Justice was done when the shepherd won $18,500 in compensation in the Employment Relations Authority.

The shepherd’s case is just one example of many which shows how badly many farm workers are treated. We have seen many cases, including:

- Farm workers underpaid thousands of dollars in wages and holiday pay.

- Farm owners not paying Kiwisaver money to the IRD.

- Warnings given with no meeting and no discussion.

- Depriving farm workers of their meat entitlement.

- Changes to farm workers' conditions of employment, or duties, without agreement.

- Verbal and physical abuse.

- Farm workers who are dismissed by text message.

- Invalid 90 day trial clauses being used to illegally dismiss employees.

- Unilaterally changing agreed rent and accommodation arrangements.

- Not letting workers take time off sick.

- Pretending that workers have no rights.

- Spreading gossip about the worker to other farm employees and in town.

Farm workers have the same employment rights as other employees. This means that if you are dismissed, or your terms or conditions of work are changed without your agreement, or you are in any way badly treated, that you may be able to take a personal grievance or sue for breach of your employment agreement. We have helped farm workers all over New Zealand. Please contact us if you would like to discuss your situation. All inquiries are confidential.

Personal grievances must be raised with your employer (or ex-employer) within 90 days or they will probably be lost for ever. The 90 days doesn’t stop ticking just because it’s Christmas holidays. If something has happened to you and the 90 days is going be up soon, please contact us now to discuss. There is no cost for an initial no obligation email discussion and if you need help we can often do so on a no win no fee basis, or at minimal cost.

There was an interesting article in the Wanganui Chronicle yesterday. Not only does the article note that the majority of cases at the Employment Relations Authority are won by the employee, but a quote from the Employers and Manufacturers Association is noteworthy: 

"We certainly know from the statistics that when it comes to performance-related matters, employers get that wrong 85 per cent of the time."

The EMA statistics confirm our own findings. What does this mean for you, as an employee? It means that if you think you have been unfairly treated the statistics prove that you probably have a very good case and nothing to lose by talking to us about taking it further.

Employment relations problems happen in all types of work and at every level. Even big companies that should know better are often involved with personal grievances. We have found that certain types of employers are over represented in personal grievance claims. They include charities, doctors, and farmers.

We have talked about charities before and we’ll talk about doctors at some stage. For now we want to talk about employees in the farming industry. We frequently come across cases so bad that we can only describe it as employee abuse. Examples include farm workers not being provided with employment agreements, being dismissed on the spot for no reason, having part of their wages withheld illegally, being kicked out of their farm house with no warning, serious bullying and harassment, and being physically and verbally abused by the owner or managers. All of these things could happen to any employee; however, they seem to occur much more frequently with farm employees. The way that many farm employees are dismissed on a whim and with no warning shows that some farmers have no idea of even the most basic employment procedures – or they just don’t care.

If you are a farm employee, you don’t have to put up with this. If you are dismissed or your working conditions are changed without your permission, you probably have a personal grievance claim available to you. It is very important that you keep records (dates, times, what was said and what happened) and that you try to get proof of what has happened. For example, if the farm manager tells you to pack your bags and get out, try to get it in writing (email is fine). Try also to have a reliable witness who will agree to give evidence to support your case.

We realise that it can be challenging for small scale employers to know the law, however, what happens to many farm workers is nasty, vindictive and illegal. There are plenty of industry bodies that will help employers to do the right thing, at a reasonable price, so there’s no excuse for bad behaviour on the farm.

If you have any concerns about your work please contact us.

It is extremely important that any personal grievance is “raised” with your employer within 90 days. This does not mean that the case has to be finished within 90 days; it just means that the employer must be properly advised of your claim within 90 days. Whether you choose to take it further or not is another matter. If you have raised the personal grievance your right to take the claim further usually lasts for 3 years. In reality, most people who raise a personal grievance pursue it immediately, but if you are unsure, all you have to do is ensure that you comply with the 90 day time limit (and make sure that you can prove that you have raised the personal grievance within time). You can then take your time to decide if you will take the case further or not.

There are a few limited circumstances that will allow someone to raise their personal grievance outside of the 90 day period, however, it is not safe to leave your claim in the hope that these might apply to you, as they probably won’t. In a recent case against Air New Zealand, a former employee insisted on trying to pursue a personal grievance outside of the 90 day time limit. She was fined costs of $1750 by the Employment Relations Authority. Don’t let this happen to you. If you think you might have a personal grievance please ask us what we think, as soon as possible. Asking does not commit you to taking the case further, but it helps to protect you from accidentally losing your legal rights.

If you have been given an unfair warning, you don’t have to put up with it. An unfair warning usually amounts to an unjustified disadvantage. There is little downside to you from challenging an unfair warning as the employer will probably have to pay you compensation and/or legal costs.

Not challenging an unfair warning is dangerous as it can harm your future career prospects if it is not dealt with.

The way that an unfair warning is challenged will depend on whether you want to stay with that employer or leave. A more gentle approach will be used if you want to stay so that the employment relationship is not harmed.

If you have any questions about unfair warnings, please contact us.

A recent Weekend Herald article entitled, “You’re fired…but wait, there’s more,” quoted Employment Law Help extensively.

The article discussed cases like Gostmann v Independent Refrigeration and Electrical Ltd where a bogus refrigeration engineer falsified his work history, wrecked customer equipment, and nearly killed a fellow worker. The employer sacked Mr. Gostmann. Despite the very significant issues with the employee, the Employment Relations Authority awarded a large payment to the employee and it even criticised the employer for failing to reference check the employee.

In the case of Mr. X v Independent Liquor, the employee was dismissed for drunken, abusive behaviour at a function attend by Prime Minister John Key. Not only did the employee succeed in obtaining a large payout at the Employment Relations Authority, he had his name suppressed.

To most people these results seem unfair.

Why did the employees win? In both cases there were major procedural errors with the way that the employer handled the employee.

In the Gostmann case, the employee was given the choice to resign or be dismissed. He was dismissed that day. There was a gross procedural failure on the part of the employer and the employer admitted this. The employer failed to consider any of the four factors under section 103A(3): a proper investigation of the issues, raising the concerns with the employee, giving the employee an opportunity to respond, and, considering any explanations made by the employee – before making the decision to dismiss.

In the Mr. X case, the employee was initially suspended, however, the company failed to give the employee details or to consult with him. Even in very serious cases an employee has the right to know what they are being accused of and to have their views considered (even if the views of the employee are then rejected by the employer). When it came to the dismissal, the employee was not given the opportunity to put his case to the decision maker.

What these cases demonstrate is that, even in the most serious black and white instances of bad employee behaviour, the employer must follow the required procedure. If the employer fails to do so, the employee is likely to win a personal grievance claim. Following the correct procedure doesn’t need to be difficult or take long. We believe that if the correct procedure had been followed in the Gostmann and Mr. X cases that the employees could still have been dismissed the same day, but without the risk to the employer.

If we were representing employer clients with employees like Gostmann or Mr. X, we would have taken a different approach. We would have argued that the substantive failings of the employee justified an immediate dismissal as the failures were so serious that the employee had broken the relationship of trust and confidence. In both cases we would also have argued for a much larger contribution to be taken into account. Contribution can be found to be as much as 100% which would mean that, even if the employee won the case on the grounds of the correct procedure not being followed, because their behaviour was sufficiently bad, the amount awarded to them is reduced. If it is reduced by 100% they get nothing. As an example, in the case of Tai v Robinson t/a Coronation Lodge Rest Home 17/3/04, false pre employment declarations were a factor in a contribution of 100% being applied, resulting in the award being reduced to zero. This case had some similarities to the Gostmann case.

We can understand employers’ feelings of frustration when they hear of decisions like this; however, it is important that there are ground rules for the correct procedure that must be followed. If we didn’t have these ground rules many good employees would be dismissed or disadvantaged by bad employers, and they might then have no ability to challenge that decision.

If you are an employee in a situation like Mr. Gostmann, where really bad things have happened, we believe that your best outcome is likely to be a resolution at mediation or by prior direct negotiation. That way the outcome and your actions can be kept confidential. You may also be able to have your dismissal redefined as a resignation, achieve some compensation, and walk away so you can start afresh. Even though Mr. Gostmann took his case to the ERA and won a financial payout, the nature of his actions has caused a large amount of negative  publicity for him. While Mr. Gostmann may have been temporarily better off, it is likely to be difficult for him to find new employment and in that situation it wouldn’t be long before the value of the payout was eaten up by a prolonged period of unemployment. We doubt if Mr. Gostmann is really the winner from having taken his case to the public forum that is the Employment Relations Authority.

If you are an employee who has been dismissed or disadvantaged through little, or no, fault of your own, our comments about the ERA don’t apply and you should not need to fear publicity, however, what is important is that your case is fully analysed at the start so that the overall tactics and strategy adopted are directed at achieving an optimal outcome for you, based on the facts of the case and the legal realities.

Please don’t hesitate to contact us if you are an employer or an employee and you have a case or any questions.

A no win no fee arrangement has many advantages for an employee. To read about the benefits in detail please click here.

A while ago we were asked to attend a disciplinary meeting with our client, an employee of a large, well known, company in the financial sector. Our client had been dishonest in their dealings with a client of the employer. The client had acted stupidly and felt genuinely sorry for what they had done. Pressures in their personal life had impaired the person’s good judgment.

We had to advise the client that being dismissed was a very real possibility. The client wanted to remain with the company and we talked about alternatives that we could discuss with the employer. The client was willing to accept a demotion and a warning that would stay on their record for a year. The client was open and honest with the employer and expressed real sorrow.

The employer took a break from the disciplinary meeting and asked to meet us again in half an hour at which time they would advise their decision. When the employer came back they offered to keep our client on but in the demoted role. Given the circumstances, and the client’s wish to remain in the company, this was an excellent result. Many companies would have dismissed without further thought. I was impressed with this very large company and their capacity to give an employee a second chance. I also liked how they advised their decision quickly so that the stress and worry for the employee was reduced. A company of compassion that managed to retain a loyal employee with an outcome that was fair to both employer and employee.

I contrast this company’s attitude with that of a large airline which is known for its harshness in employment relations matters. Even quite minor slip ups often lead to a dismissal. Not only that, the HR process is dragged out over many weeks and months, placing the employee under huge stress. Because this airline follows the correct employment procedure (in most cases), it can usually get away with its decision to dismiss. I wonder though how sensible this is. Of course there are situations where someone’s actions need to lead to a dismissal. In the case of an airline, safety infractions should usually be treated seriously. However, there are many other things that can happen that are one offs, or the employee can be brought back on track to being an excellent employee. It costs money to hire and train people and it makes good business sense to not waste that investment by dismissing people when this is not necessary. By dismissing people who would have carried on as good employees, not only does this large airline lose valuable staff members, it encourages an atmosphere of fear where things that go wrong are not going to be reported for fear of being dismissed.

In acting for an employee we will tailor our advice based on our knowledge of the company that we are dealing with. In the case of the airline, if it looks like a dismissal is going to be the likely outcome, we may advise the employee that their best way forward is to seek other work without delay and to exit before a warning or a dismissal is placed on their employment record. However, even in the case of the airline, there is always going to be more than one way to resolve a problem. A through analysis of the situation, and knowledge of the employer, are essential to gaining the best possible outcome for our clients.

In the recent case of Uerata-Jennings v The Scout Association of New Zealand a senior Scout employee who treated Scouting funds as his own personal bank, by the unauthorised spending of over $20,000 of Scout money on his own personal expenses, was found to have been unjustifiably dismissed. The employee claimed that other employees also misused Scout funds in the same way. Because the employer didn’t fully investigate this claim until after the dismissal, the Employment Relations Authority found that the dismissal was unjustified – even though such an investigation would have made NO difference to the decision to dismiss.

For the employer, the good news was that the employee’s award was reduced by 90% because of his blameworthy conduct.

This decision is one of many recent ones that show that, no matter how bad an employee’s actions at work have been, if the employer gets the procedure wrong they will have to pay. For employers it is very important that your procedure is water tight. If you are an employer dealing with a difficult employee situation, or if you are an employee who feels wronged, please talk to us as we can help.