Plenty of New Zealand employers think the law is too “employee-friendly”.
They cite cases where employees were surely at fault, but came away with big awards because the employer stuffed up the dismissal process.
“How can that be fair?,” they wonder.
They go on to assume that it doesn’t matter who’s right or wrong. Process is all that matters in employment law.
So they end up going through the motions of a “fair process” whenever they deal with their staff. But really they made up their mind from the start and nothing was going to persuade them otherwise.
I understand why employers feel this way sometimes. But I think its a real problem. Let me explain.
FAIR PROCESS LEADS TO FAIR CONCLUSIONS
A fair process to dismiss is fundamental to getting to the right conclusion.
Its not about just going through the motions.
If you genuinely work at getting the process right, in 95% of cases the fairest outcome will become clear to you. You’ll avoid personal grievances because you’ll be satisfying your obligation to act as a fair and reasonable employer.
Why is that? Well, it has to do with what the essence of fair procedure is all about.
FAIR PROCESS IN A NUTSHELL
If I was to sum up the essence of fair process I think it is:
Give your employee a chance to change your mind.
All of the basic requirements of fair process flow out of that. Think about it. If you were to truly give your employees that opportunity to change your mind you would:
- Give them all the material you are relying on to make your allegations or to base your proposal, so they are up to speed with what you know about the matter
- Give them some time to think about what they will say to try and change your mind
- Allow them the opportunity to get some outside help, especially when meeting with you, so they don’t feel unnecessarily intimidated by challenging your views when they meet with you
- Listen carefully to what they have to say when they are given the chance to present their views
- Thoughtfully consider whether anything they have told you has convinced you to change your mind
And there you have it. The fundamental features of a fair process. All because you decided to be open to being persuaded that there was another way to look at the issue.
And if you are open to doing that, you’ll find that in some cases you may be persuaded to actually change your mind. And you’ll arrive at an outcome that you may never have arrived at had you not adopted a fair process.
NOT SO OBVIOUS AFTER ALL
In the late 1960s a learned UK Judge wrote the following, which sums up the point I’m trying to make with a great deal more flair:
“It may be that there are some who would decry the importance of the rules of natural justice.
“When something is obvious,” they may say, “why force everybody to go through the tiresome wast of time involved in framing charges and given an opportunity to be heard? The result is obvious from the start.”
Those who take this view do not, I think, do themselves justice.
As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not;
of unanswerable charges which, in the event, were completely answered;
of inexplicable conduct which was fully explained;
of fixed and unalterable determinations that, by discussion, suffered a change.”
It takes a degree of humility to be prepared to let someone else persuade you to change your mind.
But that is what employers are asked to do every time they consider issuing an employee with a warning, suspending an employee or, gravest of all, terminating an employee’s employment.
Those employers who can adopt this mindset are the ones who rarely face personal grievances. They’re freed up to focus on their business without the stress and strain of litigation. The benefits of taking this approach are clear – not only is it what the law requires, but its actually good for business.
Are you prepared give your employees a chance to change your mind?