Quote:
|
Originally Posted by ::Shocker
Note the use of the word "would". The employer's actions are assessed against the exceptionally high standard of what a fair and reasonable employer WOULD do, not COULD do (as the law used to be prior to the ERA 2000). Basically the law supposes that there is only ONE way that a fair and reasonable employer would act in carrying out a dismissal, and if they don't precisely act in that manner, then the dismissal will be procedurally flawed even if it was substantially justifiable (and the employee will get $$$).
|
I don't really want to comment on this debate but I can't let such a blatant piece of intellectual dishonesty pass by. You're absolutely WRONG WRONG WRONG re: the above. Look, don't pretend to know something that you don't -- it's just unseemly.
If you think that employees will always get $$ because their dismissals were procedurally flawed but otherwise substantially justifiable, you clearly haven't read enough EC and ERA decisions. On plenty of occasions, the ERA have refused to award monetary remedies or substantially reduced them on account of contribution by employees-complainants. A cursory search on the Herald's website should net you a few examples. More importantly, your understanding of s 103A and how the EC has applied it is plain wrong at best and, at worst, outright dishonest. Seeing that I actually know a bit about the law and know where to look for the facts, here are some words from the EC itself (from
Air NZ v Hudson):
“[120] This approach effectively restores to the Authority and the Court what Williamson J called the duty of inquiry and the right of judgment [22 (1982) ERNZ Sel Cas 59; [1983] ACJ 653, at p 89; p 688.] However, the s 103A requirement for the Authority and the Court to stand back and determine the matter on an objective basis by evaluating the employer’s actions
does not give an unbridled licence to substitute their views for that of an employer. Their role is instead to ask if the action of the employer amounted to what a fair and reasonable employer would have done and evaluate the employer’s actions by that objective standard.
It may mean that the Court reaches a different conclusion from that of the employer but, provided this is done appropriately, that is objectively and with regard to all the circumstances at the time the dismissal occurred, a conclusion different from that of the employer may be a proper outcome.”
In 2009, the EC reviewed the above decision and maintained that this was the correct statement of law and that it would guide its future decisions and the work of the ERA. It's one thing to like/dislike a law for your own reasons; it's altogether something else to outright lie or (at best) exaggerate to make a point. Have some respect for the members of the judiciary who actually try a hell of a lot harder than you did in generating your load of garbage.