Legislation is all very well and good, but it tends to be black or white and one-size-fits-all employers, employees and workplaces. Real life, of course, is every possible shade of grey, with the occasion rainbow thrown in for good measure. This is why what the courts have said in individual cases can be enlightening, informative, and sometimes a jolly good read.
We include a smorgasbord of case summaries in our Alert24 People Management news service, our online People Management Plus reference library, and our HR looseleaf books. It gives our subscribers the benefit of hindsight from other people’s disputes and a peek into the minds of employment members and judges.
But employment institutions are busy places. There were over 900 Employment Relations Authority determinations last year, not to mention the cases that were referred to the Employment Court, Court of Appeal and Supreme Court. Many have little interest or relevance to those who subscribe to our HR portfolio.
The question that begs to be asked is “how do we choose which cases to write about?” Well hang on to your chair, because I’m about to tell you.
The number one factor when choosing a case is our market – will writing about this case help an HR professional or people manager to do their job? Many cases will not, and compliance orders, costs determinations, and jurisdiction disputes rarely make the cut unless, for some reason, they are really special.
One of the biggest issues for our market is process – what a “fair and reasonable” employer would do in the eyes of the law. Employment disputes, by their personal nature, often get complicated and convoluted.
We look for cases that will help people avoid and resolve employment disputes. When things like costs and compliance orders become an issue for an HR person, they are likely to need an employment lawyer, who will presumably be up to speed with those cases that we’ve left out.
So the cases we generally include revolve around things like dismissals, warnings, arguments about pay, employment agreements, harassment, discrimination and disadvantage. Some of these are rejected because they are so specific that there’s nothing much that can be learnt, like a farmer who gave a job to his cousin’s husband and fell out over a broken bottle of whisky.
On the other hand, a decision that answers a question that has been kicking around unresolved for ages gets top priority for publishing. Like a recent Employment Court case that confirmed an employee who is dismissed under the 90-day trial period legislation *can* raise an unjustified disadvantage grievance (even if, reading between the lines, they are precluded from raising an unjustified dismissal grievance). The Court also confirmed that if the employee asks at the time why they are being dismissed, the employer will be expected to tell them, even if they are still in their trial period and will be unable to raise an unjustified dismissal grievance.
And with more employment law changes on the horizon, no doubt there will a flurry of cases to follow. Watch this space!