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Originally Posted by cyc
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.
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Compensation that has been reduced to some extent under s 124 by virtue of an employee's contributing behaviour must still be paid by the employer. They're still out of pocket for a procedural deficiency in an otherwise substantively justifiable dismissal. And where compensation is deemed appropriate, it's not common that any conduct on the employee's part is assessed as being so blameworthy as to entirely cancel the award made in their favour.
All I was saying was that procedural missteps can be costly, especially for a small employer. The ERA 2000 is clearly targeted at large employers and unions. I don't think you can dispute that.
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Look, I'm plenty familiar with Judge Shaw's decision in
Hudson, and especially her statement that s 103A doesn't give Authority or Court an unbridled licence to substitute their views for that of the employer. And yes, her approach was upheld by the full Court in
Air NZ v V. But to be absolutely blunt, while the Employment Court says that s 103A doesn't empower them to substitute their views for those of the employer, that doesn't change the fact that that is precisely what happens both there and in the ERA.
I'm sure you're familiar with the EC's decision in
X v ADHB? You know, the doctor who engaged in what the Judge himself described as "blameworthy" and "aberrant" conduct that arguably constituted serious misconduct. Remember how Judge Colgan said that:
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"… a fair and reasonable public health provider would not have dismissed the plaintiff. Rather, it would have applied a variety of sanctions and behavioural correctives and safeguards with a view to ensuring that such misconduct would not recur.”
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So here's a situation where the employee admits that he engaged in blameworthy conduct that fell short of commonly accepted standards of conduct for senior physicians, the Judge himself arguably considers that the employee's actions met the test of serious misconduct, and yet the dismissal is not upheld. Instead, it is considered that a fair and reasonable employer in the DHB's place would have applied sanctions and "behavioural correctives". Of course there were procedural flaws in the DHB's investigation, but seriously, you tell me how that is not substituting the Court's own view for that of the employer? How does that not require the employer to be more generous or benevolent than it was?
I stand by what I said.
(And FWIW, I have the utmost respect for the judges of the EC. I just think that in respect of this particular provision, they've got the wrong end of the stick).