Sacked 90 day worker wins justice

Written By: - Date published: 1:50 pm, August 25th, 2010 - 17 comments
Categories: Unions, workers' rights - Tags: , , , , ,

Some great news on the Fairness at Work campaign. Heather Smith, the pharmacy worker who was sacked unfairly under the 90 day fire at will law and featured in a recent advert for the campaign has won a CTU-backed case against her employer in the Employment Court.

The court found that Heather’s employer was in breach of the contracting requirements of the ERA and that the employer’s failure to treat her in good faith or to comply with her employment agreement gave her grounds for compensation for the way she was treated.

This is great news for Heather and a big public win for the CTU that will encourage other workers to challenge unfair treatment. But unfortunately it won’t create any landmark precedents for other workers, as the court found that Heather’s employer failed to live up to its general employment responsibilities under the ERA – not that there were secret work rights hidden away somewhere in the 90 day law as the Nats appear to be suggesting.

Still, good to see an exploited and dumped on worker get justice and for her shitty employers to get the kicking they deserve. Now we just need to get rid of this law. You can sign up here.

17 comments on “Sacked 90 day worker wins justice ”

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  1. zimmer 1
    25 August 2010 at 4:22 pm

    Totally irrelavant. The 90 day law is for new workers at a job, not current workers after a takeover of the business..
    The new employer in this case was wrong to do what they did as it was not the right thing under law.
    So the union is talking complete nonsense.

    • Bright Red 1.1
      25 August 2010 at 4:51 pm

      just checking zimmer.

      The employer tried to sack her on what it claimed was the 90 day period? Yes. And that sacking was found to be illegal? Yes.

      And if she had actually been sacked until the 90 day period would she have had any right to contest the legality of that sacking in court? No.

      So, her situation would have been worse thanks to 90 days and it was only the old law and the rights it gave her that saved her? Yes.

    • The Voice of Reason 1.2
      25 August 2010 at 7:59 pm

      Actually, there are aspects of the judgement that suggest the 90 day law has actually made it harder to fire workers legally. Ignorant employers who rely on it solely to dismiss workers are now more likely to find themselves done on technicalities. Bonus!

      No surprise, really. Wilkinson doesn’t seem to have got her head around the good faith aspects of the law at all. They’re still there and they still count.

  2. burt 2
    25 August 2010 at 9:13 pm

    So lets get this right, the CTU backed case is claiming a victory against misuse of the 90 day trail period because in one example (other cases are pending) one clumsy employer misused the trial period to dismiss existing staff in a takeover.

    OK, great… anyone working in a company where an ownership change occurs will now continue to be sacked under Labour’s law and that was apparently fine while Labour were in office. Bet a lot of union membership fee payers are chuffed the lawyers spent this much money on misleading advertising for the union.

    • mcflock 2.1
      25 August 2010 at 10:15 pm

      “sacked”? No.
      “Redundancy payout”? Yes.
      “Good faith”? Required.
      “Unfairly sacked without good faith within 90 days if employed to a new position”? Enabled by the NACTs.

  3. Fisiani 3
    25 August 2010 at 10:48 pm

    Another own goal by the unions. Come on put up or shut up about abuses. Still a relatively deafening silence after 15 months

    • RedLogix 3.1
      25 August 2010 at 11:24 pm

      You righties constantly cry and whine about getting banned from here despite the fact you get warnings and are told why you’ve been banned. Hell sometime you even get to make a case and have a ban lifted.

      Losing your job is a lot worse than being banned from the standard and yet you will blithely dismiss the rights of workers to a fair process while wailing and moaning about the very fair process you get here.

      http://www.thestandard.org.nz/sacked-no-reason-given/#comment-241279

      IB handed you your metaphoric butt on a plate right there. You’re a hypocrite Fisi.

    • felix 3.2
      25 August 2010 at 11:31 pm

      Here’s a link for you fizzy.

      The link is to an article about a case of the 90 day law being abused by an unscrupulous employer.

      p.s. you need some new lines. Key stopped saying that a few weeks ago when the CTU started putting up.

  4. Chuck 4
    26 August 2010 at 8:58 am

    First observation about this video story is that the woman didn\’t get a clear statement of intent from the new employer regarding the stability of her postion. Not her fault entirely, and definately not fair, but assumptions based on emotional reactions aren\’t really a sensible strategy for life. Changing deceitful employers is difficult. Changing yourself, much easier. But now this woman knows that. But I have another question not related to her story too:

    90 day trials are arrived at by agreement, yes? So why not refuse them? Move on to another employer who doesn\’t require one? Sure there is the obvious answer of desperation, but how does getting fired a day or a week later help desperation? As yet there is no law saying a person must accept a contract under duress. Job seekers have more power than they believe. If disabling the 90 day trial law is the unions intent, they\’d be better off educating people how to communicate clearly, rather than outlining stories of situations that went bad. Life isn\’t fair. So what. We know that already.

    • NickS 4.1
      26 August 2010 at 11:01 am

      90 day trials are arrived at by agreement, yes? So why not refuse them? Move on to another employer who doesn\’t require one? Sure there is the obvious answer of desperation, but how does getting fired a day or a week later help desperation? As yet there is no law saying a person must accept a contract under duress. Job seekers have more power than they believe. If disabling the 90 day trial law is the unions intent, they\’d be better off educating people how to communicate clearly, rather than outlining stories of situations that went bad. Life isn\’t fair. So what. We know that already.

      Sure, in a non-recession period that might actually work, however, we’re in a recession _and_ some employers are douchebags who’ll fire you for the smallest of things, or just because your beliefs don’t mesh with theirs, or like me, you have mostly treated long term depression. As for life not being “fair”, yes, shit happens, but the one of the points of law and the welfare system is to reduce the impact of life’s little and not so little fuck ups, and even the playing field, so all that are able to can participate in society. Not that it works out perfectly mind you, if you’re not male, you’re still paid 20% less on average for the same job, and if pregnant and not in a major city, you can expect a bloody long drive to get an abortion.

      Also, even in a non-recession period, the 90 day hire a fire law does lend itself towards abuse, and also is demoralising to former staff, who get no notice as to why they were fired, which from experience is rather frustrating.

    • Vicky32 4.2
      26 August 2010 at 4:58 pm

      “Changing deceitful employers is difficult. Changing yourself, much easier. ”
      WTF? Why does she need to change herself? She’s the victim not the villain…
      “Sure there is the obvious answer of desperation, but how does getting fired a day or a week later help desperation?”
      Clearly you’ve never been unemployed… No one who accepts a “90 day trial” believes she will actually be dumped. The worst part of it is that when she is, she’ll never know why!

      • Chuck 4.2.1
        26 August 2010 at 7:06 pm

        Don’t assume my historical circumstances, Vicky. My point is that she is not a victim while she persues her own solutions. Victimhood is a self-fulfilling prophesy. No one is a victim till they believe they are. No one else can change her victim status, but her. She doesn’t need other people to tell her why she was fired (even if they did, and didn’t tell the truth, or didn’t fully know themselves it wouldn’t help) If she’s concerned about why things happen she needs to examine her motivations and question their value. Same for everyone regardless of socio-economic status.

  5. frog 5
    26 August 2010 at 9:56 am

    I’ve uploaded a copy of the judgment over at frogblog, for those who are interested in reading it. It is a huge win against those employers who think the fire at will law allows them to abandon all proper procedure with new employees.

    I suspect Kate Wilkinson will be spitting tacks and mumbling about an “activist judiciary”, but I think it is a great judgment.

  6. Chuck 6
    26 August 2010 at 11:40 am

    I suspect Kate Wilkinson will be spitting tacks and mumbling about an “activist judiciary’, but I think it is a great judgment.

    She has evidence to be concerned. Chief Judge Colgan\’s judgement challenges her intention that the 90 day law tilts the balance back towards employers. See conclusions on page 24, [82]; and judgement pg34 [120] and judgement [122]; which pretty much rams the point of Good Faith and Fair and Reasonable, home. To quote one part:

    \”…It did so [the employer refusing explanation] soley because it thought it was entitled to act…\”

    August 24, 2010, was the day the judiciary enforced good sense on destructive political populism.

  7. Chuck 7
    26 August 2010 at 12:07 pm

    NickS Valid points. But if I can use your argument reinvented as a hypothetical person:

    They know there\’s a recession on
    They know some employers are D/bags
    They know they have depression and are treating it
    They know life isn\’t fair
    They know they want to participate and can contribute
    They know some of the hurdles of location and culture
    They know their personal tendencies

    Isn’t 3/4 of the work done? Awareness is a valuable advantage.

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