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gzt

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  Reply # 573558 26-Jan-2012 13:00
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Lizard1977: [...] And therein lies the problem - in these circumstances there is no second side to the story, the employer has the last say. In this case, the person I know was given a reason for being dismissed (which is entirely spurious) but it has become apparent that they were fired so that the employer could hire a friend instead. So the person I know has lost her job and now carries the stigma of being sacked for no good reason, with no effective recourse or right of reply.[...] 

sen8or: If the person was competent, experienced and a valuable employee was let go at day 83 "for no reason", then its surprising that the business is still oepn as they must be idiots. My $ however is that there is a 2nd side to the story.......

Ragnor: Only reason you would get rid of someone was if you didn't need them or they didn't add more value than they cost.

In early cases on this topic the courts have ruled that acting in "good faith" is still required. If what Lizard asserts is correct about the incorrect reason for the dismissal (and who knows) then clearly the employer was not acting in good faith.

eg; Same test would apply if the position was in reality temporary and had not been made clear during the hire.

Giving a spurious reason is a really dumb idea.

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  Reply # 573572 26-Jan-2012 13:19
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MikeyPI:
jeffnz: like the employers this is being used as a test case to establish guidlines for other companies and unions cases. In reality the employee's are just pawns for both sides which is unfortunate.

For me I tend to side with the employers as it would seem that productivity is down and needs to improve to attract and keep business which in the long term benefits both sides and indeed Auckland as a whole.

It will be interesting to see how far this goes but the Union has nothing to lose now and is trying to get back public support but I think thats a bridge too far but they can't be seen to back down.


Of course you side with employers, they pay your wages. If you'd followed the story you would have seen that productivity is at near reduces levels at the port, hence all the productivity bonuses paid out..


Your assumption seem based more on emotional than factual so i will dismiss that as being irrelevant.

As to following the story maybe you should follow your own advice

http://tinyurl.com/6oc89j6

the above report is based on facts

http://tinyurl.com/6oxn4vs

the above from stuff summarises the findings and I tend to agree with them.





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  Reply # 573575 26-Jan-2012 13:24
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"Not a union rep @ all, just have been on both sides of the ideology. If you don't understand how much right wingers hate unions, look at Fox's attack on the Teachers Union, blaming them for the US's economic woes."

once again you make assumptions about people this time right wingers clearly showing your own bias.

I have been on both sides as well and also on a union executive for a number of years way back when I supported the left. After having seen the damage they could do and the reson behind it I changed to support the right, not in everything as I don't believe one side has all the answers, but I prefer to see people given opportunities to better them selves rather than hand outs and funding poverty. Off topic i know and apologise.

Unions are required for those that can't stand up for themselves and are also needed to give balance.




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  Reply # 573605 26-Jan-2012 14:01
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gzt:
Lizard1977: [...] And therein lies the problem - in these circumstances there is no second side to the story, the employer has the last say. In this case, the person I know was given a reason for being dismissed (which is entirely spurious) but it has become apparent that they were fired so that the employer could hire a friend instead. So the person I know has lost her job and now carries the stigma of being sacked for no good reason, with no effective recourse or right of reply.[...] 

sen8or: If the person was competent, experienced and a valuable employee was let go at day 83 "for no reason", then its surprising that the business is still oepn as they must be idiots. My $ however is that there is a 2nd side to the story.......

Ragnor: Only reason you would get rid of someone was if you didn't need them or they didn't add more value than they cost.

In early cases on this topic the courts have ruled that acting in "good faith" is still required. If what Lizard asserts is correct about the incorrect reason for the dismissal (and who knows) then clearly the employer was not acting in good faith.

eg; Same test would apply if the position was in reality temporary and had not been made clear during the hire.

Giving a spurious reason is a really dumb idea.


We did look into the "good faith" provisions of the ERA immediately after dismissal, but the advice was that it was too hard to prove.  As I said before, we suspect that the reason given is not the real reason, because it is patently ridiculous in the circumstances.  But that is the fundamental flaw of the 90 Day rule - the employer doesn't have to give a reason.  Previously, this would be called unjustified dismissal, but now the 90 Day rule simply legalises unjustified dismissal for new employees in the first 90 days.  In this case, we strongly suspect that the position was only temporary, and if so the employer would be breaching good faith requirements as it wasn't made clear during the recruitment process.  However, that is nearly impossible to prove.  To do so, we would need to show that the orginal intention was to hire someone else, the only hint that it was happening would be after the person was fired.  By that stage, the evidence can be hidden as the need to replace the previous person.  Short of some kind of documentary evidence of a conspiracy, there's no way to prove that.  So while the good faith provisions are theoretically a protection against abuse of the 90 Day rule, in practice they are little more than a sop.

As I hinted in my first post, proceedings are underway.  But irrespective of the outcome, the stigma of dismissal remains.  Whether or not the dismissal is legal, it remains an unjustified dismissal in practice.  However, the dismissed person has only her word when approaching potential employers, and nothing she does can fix that.  A solid career is destroyed because of an employer's whim.

gzt

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  Reply # 573636 26-Jan-2012 14:48
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Lizard1977: We did look into the "good faith" provisions of the ERA immediately after dismissal, but the advice was that it was too hard to prove.  As I said before, we suspect that the reason given is not the real reason, because it is patently ridiculous in the circumstances. But that is the fundamental flaw of the 90 Day rule - the employer doesn't have to give a reason.[...]

If asked, the employing party must give a reason for the dismissal. That is why giving a spurious reason is such a dumb idea. If it is as patently ridiculous as you say, then you have a case.

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  Reply # 573657 26-Jan-2012 15:15
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gzt:
Lizard1977: We did look into the "good faith" provisions of the ERA immediately after dismissal, but the advice was that it was too hard to prove.  As I said before, we suspect that the reason given is not the real reason, because it is patently ridiculous in the circumstances. But that is the fundamental flaw of the 90 Day rule - the employer doesn't have to give a reason.[...]

If asked, the employing party must give a reason for the dismissal. That is why giving a spurious reason is such a dumb idea. If it is as patently ridiculous as you say, then you have a case.


You are right that, if asked, they must give a reason.  But this doesn't change the fact of the dismissal, and the reason itself doesn't become grounds to challenge the dismissal.  The reason given may lead to a line of enquiry as to whether good faith has been breached, but the case is far from proved at that point.  In reality, a perfectly good employee can be arbitrarily dismissed, and the effort required to reclaim the job or appropriate comepensation, and clear their name is so great it would likely discourage all but the most belligerent people.  It stacks the deck in favour of the employer, and in my opinion for very little benefit to anyone but a poor or lazy employer. 

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