Key caught out again on 90 day law

Written By: - Date published: 7:12 am, July 21st, 2010 - 29 comments
Categories: john key, national, workers' rights - Tags:

Good to see John Key’s lies over the 90 day fire at will law are starting to catch up with him.

Following yesterday’s exchange in the House, the Herald has picked up on Key’s smug assurances that even though his law will explicitly remove our right to even be given a reason why we’re getting the sack, somehow the good faith provisions in the ERA would still require the employer the give one.

The 90-day trial is covered by good faith provisions,” Mr Key told the House.

“It is reasonable to accept that that includes giving a basic reason. However, there is no reason for a formal written reason.”

Unfortunately for Key, while he might be able to spin that bullshit to his starstruck pizza delivery guy, the employment experts aren’t fooled.

Employment law specialist Jane Latimer said the Prime Minister’s claim was arguable. “The question is: is not telling someone why they’ve been dismissed at the time of their dismissal being uncommunicative or unresponsive?

“And it could go both ways, depending if you have a narrow view of being ‘communicative and responsive’, or having a broader view.”

She noted if a worker was dismissed and did not ask for a reason why, an employer would have no legal obligation to tell them.

John Key has lied to us about the contents of his politically compromised Department of Labour report.

He has lied to us about the reason he’s making changes to sick leave provisions.

He’s even resorted to smearing workers in the meat industry to undermine their already miserable sick leave entitlements.

And now he’s lying to cover the fact he wants to make it so that even more people can be fired for no reason and never even be told the reason why.

Rather than banging on about Sanjay the pizza guy*, perhaps Key should have a chat with Alison the art valuer and the many other Kiwis who are already being sacked for no reason under his unfair, anti-worker employment laws.

[*who he doesn’t seem to realise is an independent contractor, not an employee.]

29 comments on “Key caught out again on 90 day law ”

  1. Geo 1

    maybe Key is talking of the meat industry because one of his backers is buying into this market.
    Quote from the Stuff web site: http://www.stuff.co.nz/business/industries/3937395/Talleys-bids-for-Affco
    “South Island-based food producer Talley’s Group is making a full takeover offer of NZX-listed meat processor Affco at 37c a share.”
    Its called “lets help our mates out”

    • A Post with Me in it. 1.1

      I believe the word you are looking for is ‘corruption’.

    • Tiger Mountain 1.2

      I wondered why the PM was atypically delving into detail, and the lifestyles of meatworkers at that. Talleys is a pre-emenint anti union company and is involved in Wyatt Creech’s Open Country Cheese, as is to a lesser extent Johnnie.

      Lewis & Edwards v Talleys Fisheries Ltd—High Court, Wellington, June 2007
      Gender discrimination claim—upheld: “Gender discrimination in the allotment of jobs was practised at South Island fish processing plant Talleys Fisheries Ltd,’ according to a High Court decision.The company’s CEO told the Herald on Sunday the decision was “pathetic’ and “a joke’, and radio, “women are fine for pole dancing but not suitable for fish filleting’.

      These industrial neanderthals are where the dodgier SMEs get their world view and rhetoric from.
      All the “but what about the good bosses’ whingers here the last few days should realise you are going to come across some very unpleasant company in your search for the elusive ‘good boss’.

  2. BRain 2

    I was thinking how I would respond if faced by an offer of a trial period. I think I’d tell the employer that I need someone more communicative and capable of commitment. Personally, I need my employer to be equal or better than me. Quite happy to support and engage with people through the hard times, if they are actually pushing forward and growing. But carrying the responsiblity for sullen negative employers isn’t constructive for anyone. This 90 day law gives employers an incentive to run away from responsibility – it legislates cowardice. Running away is human enough, but not something you threaten at the beginning of every single relationship. This law is a tax rebate for negative behaviour: instead of giving the companies a tax rate reduction, they’ve said you can now get rid of people without following good, costly, procedure – it’s free! It reveals how little politicians know about the dynamics of real life relationships. I’ll be damned if I let politicians, who when faced with the truth, lie, blame and sack their collegues, then run how my relationships will go. Supporters of what is incorrectly termed “The Right” in NZ were all over Helen’s crowd for meddling in the private social affairs of people. This 90 day bill is a massive leap into that territory – but now it’s suddenly ok, because National are doing it. Employers and work enviroments will suffer from over-application of this law and it will not encourage growth. It encourages fear: reinforcing it on the employers side, increasing it on the employees side. Fear and distrust wasn’t a part of Key’s vision for NZ.

  3. loota 3

    Fear and distrust wasn’t a part of Key’s vision for NZ.

    Agreed with everything you said except this.

  4. Much has been made of the person who takes every Monday or Friday off. Before giving them the sack wouldn’t the law of natural justice and common decency suggest that their employer have a discussion with them about it? Maybe for example they are getting beaten up by their partner every weekend, or be in some other situation that is affecting their ability to get to work. Before anyone says that that is not the employees problem – this sort of stuff is everyones problem.

    Seems to me, like so many of the things that this government is doing they are focusing on pathetic, punative, do little things rather than working towards a society that makes it more possible for people to live well and contribute.

    • jenn 4.1

      I so totally agree, particularly with that last paragraph.

      There are bound to be staff who are ripping off the system, taking too many days off, etc. But the majority of people taking sick leave are people who are genuinely ill, and/or have other major issues going on. For an employer to be respected (which leads to employees being committed/engaged, which leads to greater productivity), they should recognise this, and talk to their employees before taking petty action and demanding medical certificates for one-day absences.

    • Carol 4.2

      Yes, it reminds me of a time when I was supervising a student who was on a work experience placement. The workplace kept complaining to me that he was taking too much time off, with excuses like he had to take his dog to the vet. He also didn’t give me much of an adequate explanation, but his record at work was very good.

      Eventually he told me he was going to withdraw from the course. He said his partner had had AIDs and had just died. He was beyond being able to cope with work or a course. The excuses about taking the dog to the vet related to needing to care for his partner, take him to the doctor etc. He felt saying that may have counted against him in the workplace.

  5. tsmithfield 5

    “And it could go both ways, depending if you have a narrow view of being ‘communicative and responsive’, or having a broader view.’

    She noted if a worker was dismissed and did not ask for a reason why, an employer would have no legal obligation to tell them.”

    So, the law depends on interpretation and circumstances. Whats new? If someone doesn’t bother to ask for a reason then they probably won’t get one. If they do ask they are entitled to one. If they didn’t ask they probably didn’t care anyway.

    Anyway, it won’t be difficult for the legislation to be written so it makes it clear that the good faith provisions require that an employer must give a reason for a dismissal regardless.

    So, I don’t see any great conflict, especially since the law hasn’t even been passed yet.

    • Pascal's bookie 5.1

      Yeah, Key was describing the future version of the law in the present tense.

      This is because he is aspirational and time doesn’t apply to him.

      Stupid lefties

      • tsmithfield 5.1.1

        “Stupid lefties”

        You said it. Not me. 🙂

        We have one opinion from a single lawyer. That opinion is in most respects consistent with what the PM said. In fact the lawyer said:

        “Employment law specialist Jane Latimer said the Prime Minister’s claim was arguable.”

        As I understand it “arguable” means that if the matter was argued in court, depending on the circumstances, there is a reasonable prospect of success.

        Key may have obtained legal opinions that support his position even more strongly on this.

        The opinion of one lawyer a contradiction does not make, especially when that opinion is quite supportive of the PM’s position anyway.

        • The Voice of Reason 5.1.1.1

          “Employment law specialist Jane Latimer said the Prime Minister’s claim was arguable.

          As I understand it “arguable’ means that if the matter was argued in court, depending on the circumstances, there is a reasonable prospect of success.”

          It’s arguable in the sense that Key’s position could lose, TS. Latimer is saying that the alternative position to Key’s is ‘arguable’ and therefore has the prospect of success. Not Keys. Geddit?

          Sheesh, why am I even bothering to explain this?

        • Pascal's bookie 5.1.1.2

          As I understand it “arguable’ means that if the matter was argued in court, depending on the circumstances, there is a reasonable prospect of success.

          I don’t know about lawyers, but when philosophising types say that “arguably x” or “one could argue y” they are distancing themselves from that position. They are saying that it certainly looks that the case is such and such, but that if you squint and wheedle and bang on the table and get the lighting just right, you might convince an idiot that the opposite is the case.

  6. Bill 6

    Ever worked in a place where one of your co-workers was a complete arse-hole?
    Ever worked in a place where just about everyone was aghast at how it was that the boss didn’t fire said arsehole?
    Ever worked in a workplace where the arsehole hanging on to their job made your job and everyone else’s much more onerous?
    Ever worked in a workplace where the arsehole hanging on to their job wreaked havoc on good workplace dynamics?

    I’m guessing most of us have.

    Now, here’s the thing. Would it not make far more sense for workers to have the right to fire rather than bosses?

    For a start, we understand exactly what is going on the workplace and bosses don’t. We understand how devastating the loss of employment would be and bosses don’t always get that one. And an arsehole worker causing the scenarios listed at the top of the comment can pull the wool over a bosses eyes, but can’t with regard co-workers.

    I’d suggest that the whole environment surrounding firings would be much more reasonable and therefore much less liable to give rise to personal grievances, thereby saving employers the pain of having to pay out money for their own short comings.

    I’m not talking the union having the power fire btw. I’m talking about co-workers who may or may not be in a union. Even in conjunction with the boss if that is appropriate in a given workplace.

    Oh, I know. Power in the hands of workers not being mediated by some external authority. Shit. First we’d be ensuring the smooth running of the factory floor with no need for bosses on that front and then we’d start getting all sorts of ideas…

    • mcflock 6.1

      nah – the arsehole would preemptively fire those seen as a threat to arsehole’s job.

  7. artist not on the dole 7

    hey here’s a thought

    we employ the government right?
    so next election we have a 90 day oppotunity to sack them all ! ! !

    weehaaaa

    yes i was just stirring, and i am aware they are legally more protected than they should be, and it is basically an unwinnable option, but if some legal eagle can figure it out, it could be fun to try

  8. bbfloyd 8

    good faith? is key(Ronald Mcjonno)really Neville chaimberlain in disguise?

  9. AH 9

    “Now, here’s the thing. Would it not make far more sense for workers to have the right to fire rather than bosses? ”

    Excellent idea. We could call it The Firing Squad and sell it to TVNZ as a serialised reality show.

    “You’re fired!”

    BANG!

  10. What is more interesting for me, is the fact that Key stated that “employees will have a choice about whether the 90 day trial is included in their contract”.

    So Mr. Key, does that mean that if an employee insists that no 90 day trial period be included in the contract, that the original employment offer not be destroyed, because the employee is only “querying”, rather than “altering” the original offer? – The courts are bound to follow the then Parliament’s intentions – and since Key’s comments will have been recorded in Hansard, is it not Parliament’s intention therefore that: “employees will have a choice about whether the 90 day trial is included in their contract”.

    And because the substance of the offer remains the same, the employer can only not agree to continue the amended offer if there is some other technicality – under common contractual law?

    • Carol 10.1

      Mallard and Labour is asking Kate Wilkinson very carefully worded questions about her intentions with the 90 Day Trial law. So they are going for this and trying to get it clearly on record. ie can employee get an explanation of why they’ve been dismissed.

      She said a fair employer would tell the employee why, but there is no requirement to put it in writing.

      A series of questions being asked on the technicalities of the law.

    • The Voice of Reason 10.2

      I’m not quite sure what you’re asking here, PP, but if you are assuming that the offer of a job is the same thing as an employment agreement, you’d be wrong.

      Prior to the signing, by both parties, the agreement has no force and there is no employment relationship. It is at that stage, prior to signing, that the decision about whether the 90 day clause goes in and Key is right, the worker does have a choice, but not the one he is lying about. It’s the choice between 90 days or no job.

      Merely offering the job does not establish the relationship and the ERA holds a signed agreement as primary proof of the relationship and requires there to be one for all employees. This difference is also the reason employers can insist on drug testing, police checks etc. as well, because, prior to signing, no employment relationship exists.

      I can see some intersting issues for WINZ in this. If a beneficiary is offered a job, but can’t come to agreement on terms, does that mean their benefit should be stopped for refusing to take the job?

  11. roger nome 11

    “She noted if a worker was dismissed and did not ask for a reason why, an employer would have no legal obligation to tell them.”

    They’ve got no answer for this over at kiwiblog, because they know that it’s impossible to defend short of “trust all employers to be fair” – which of course is never going to be swallowed by anyone who has a decent bredth of life experience.

    This is the point that the left should be focusing on.

  12. roger nome 12

    Policy Parrot: You’d need the boss to go back on a signed employment agreement, with no 90-day fire at will clause in it. Of course they’d have to pretty stupid to try that on in mediation.

  13. f_t 13

    “She noted if a worker was dismissed and did not ask for a reason why, an employer would have no legal obligation to tell them.’

    And if the employee did ask for a reason why, an employer would have no legal obligation (accountability) to give them an honest answer. How is a non accountable reason different to no reason?

    • Carol 13.1

      As I understood it, the employee can ask the employer to give them a reason why their employment was terminated before the end of the 90 day trial, and the employer should give it. However, the employers are not required to put it in writing. Thus, unless the employee audio-records the employers reason, they will have no evidence on which to base any complaint of discrimination, harassment etc.

      • felix 13.1.1

        Indeed, recording workplace conversations will of necessity become commonplace. The seeds of mistrust, suspicion, paranoia and fear will surely be spread through every aspect of working life.

        Ambitious for NZ. Time for a change. Thanks National Ltd™, I’m lovin it.

  14. Maggie 14

    I am so sick of the smug, self satisfied smirk he wears on his silly face. It never seems to stop.

  15. Maggie 15

    The government’s position is totally insulting to all employers, suggesting they don’t have the brains to understand procedure. It is not difficult if you take it step by step and there are plenty of places you can go to for advice.

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