Employment laws exist to protect employees and to level the playing field in a relationship where there is often a power imbalance. But having the right to bring a dispute or personal grievance means nothing if an employee is too scared to exercise it. Likewise, having an entitlement to leave and minimum rates of pay is only meaningful if an employee can complain if they are being ripped off.
There have been a number of recent instances which have caused concern for me about how difficult it has become for employees to raise legitimate issues in their employment.
In a recent Stuff column, my colleague Peter Cullen wrote about a truck driver who was fired for circulating a news article to co-workers during the level 4 lockdown in March 2020. The article that had been circulated electronically related to employee rights, and in particular, whether employees were entitled to be paid if their employer was unable to provide work during the lockdown.
When I read the case itself (Singh v Singh and Veer Enterprise Limited), I was horrified to see that it was my article that had been circulated and which had been the cause of Singh’s dismissal.
In finding the dismissal to be unjustified, the Employment Relations Authority found that circulating an on line article to colleagues was no different to handing around a newspaper at work, and a fair and reasonable employer would not have fired a worker for this.
Reflecting on what occurred, it seems abhorrent that an employee can be punished for circulating a publicly available news piece, presumably with a view to making other employees aware of what their legal rights might be.
There have been other similar cases including one involving Katrina Murray and South Pacific Meats Limited in which Murray was suspended and issued with a final warning for posting a union newsletter on a work notice board, and allegedly distributing it. The authority said that “A union member or delegate distributing a union newsletter to union members in the workplace is not the sort of conduct that would in the normal course of events be considered serious misconduct”.
Whilst the content of the newsletter included comment that was critical of the employer, the authority accepted that it did no more than reflect what had been said in previous decisions of the authority and Employment Court. In result, the authority found that issuing a final warning was a disproportionate response – if the employer had any concerns about the content of the newsletter, it should have raised these with the union which wrote it.
The Employment Relations Act provides for discrimination on the basis of union membership status or involvement in union activities. “Union activities” is defined broadly as including the act of submitting a personal grievance to an employer, regardless of whether the employee is a union member or not.
So statutory protection against discrimination on this basis exists, but again, it is only effective if employees can actually use it.
Recently I have received letters and emails from people suggesting that this is not always the case. In one email, the writer talked about how he and a number of colleagues had challenged their employer for non-payment of wages during the lockdown and were pushed all the way to the doorstep of litigation before their employer conceded and agreed to pay them.
He said that the employees would not have had the confidence to do this were it not for reading an article I had written (likely to be the same one that got Singh fired) about the right of employees to be paid during lockdown. Whilst eventually achieving a satisfactory outcome, the writer expressed concern about the intimidation tactics employed by the company, including being threatened with costs if they contested the case.
In another instance, I recently received a letter from an anonymous source asking me to write about a particular issue. When I followed this up, it appeared that they were seeking generic advice in this way because they were fearful of raising issues or involving lawyers.
Again, these examples highlight the reality for many employees – they are compelled to remain silent through fear of the consequences of challenging their employer. This is not on. Employers need to accept that employees have rights and are entitled to seek to enforce them without fear of reprisal.