“Sorry bro, I’m going to have to let you go aye. We’ve had a complaint from a customer about you and we’re not happy about your performance. It sucks bro but I’m going to have to give you your two weeks-notice.”
This is how a 21-year-old bartender lost his job recently. No warnings. No process. Just a message over WhatsApp.
One minute you have a full-time job, then a completely unexpected alert chimes in on your phone and your income has vanished.
This was completely illegal. The mechanics of this case are the epitome of what not to do if you are an employer, though sadly I expect it is a frequent occurrence.
The problem in this scenario (according to the boss) was performance. If an employer has a significant concern about how you are doing your job, if there has been a complaint about you, then the next step is to investigate the issue.
This involves notifying you immediately that there is a potential problem, in writing, and outlining what the concerns are and how the process will proceed. The employer must meet with you to get your side of the story as part of the investigation before making any judgements. This includes informing you that a disciplinary process is a possible, but not a pre-determined, outcome.
If they decide as a result of the investigation that their concerns were valid, then you would typically been given a warning and subsequently a chance to lift your game.
Performance issues are not serious misconduct and under no circumstances do they warrant a summary dismissal as has happened for our young bartender.
Nor is sending a message over social media considered a reasonable way to communicate disciplinary matters. Such a momentous decision must be formally communicated, and before that even happens the employer is obliged to meet with the worker to get their response.
These obligations around process are there for a reason. To stop workers getting fucked by ignorant or arrogant employers. It doesn’t even matter if the performance concerns were genuine – you have to follow the process. Process is king. Just like people charged with a crime deserve a legal defence.
What has happened here is an egregious breach of the duty of good faith, as set in law by the Employment Relations Act.
I’ve since spoken to the employer after raising a personal grievance on behalf of the young Kiwi, and they had no idea what they were doing.
They thought they had the freedom to drop employees at will – it’s their business after all. They had no idea what proper process looks like. They didn’t even know what mediation was, which is where they are headed.
If you get sacked and you don’t think the reason was fair or the correct process was followed, you may have been unjustifiably dismissed. This means you can raise a personal grievance, basically a letter you send to the boss (lawyers or advocates can do this for you) outlining why you’re pissed off and what you want in compensation for this poor, possibly unlawful treatment.
The employer then gets to respond and say whether they are willing to provide the remedies you’re asking for or go to mediation. Mediation is the next phase, where you sit in a room with the employer and their representatives and talk it out, hoping to reach a settlement. The mediator stops you from killing each other and if you’re successful in arguing your case you usually walk away with some cash.
If this doesn’t work (it is a voluntary process after all) you can then push your complaint through to the Employment Relations Authority, or even the Employment Court. Mediation tends to resolve things most of the time though, and most mediators seem to be pretty good at getting people to see the writing on the wall.
I have to wonder though – how many other young Kiwis are losing their jobs to the ignorance of small business New Zealand?
In my view business owners should have to pass a warrant of fitness to employ people. Too many are simply not fit for the task.
Business is about people. IT IS ABOUT PEOPLE. Not your pockets. Do better.