Memo to EPMU: What to do

Julie asked in a comment earlier this morning what I would suggest the EPMU do.

Well, I think that they have got back on the right track after a few (apparent) stumbles. At the end of the day this is an employment dispute, whatever else the likes of Idiot Savant and Whale Oil think.

Stick to the employment issues, EPMU.

Issue a final warning.

And sue Hide over the ridiculous allegations of racism.

The key employment issues seem to me to be:

  • Does Tan’s action in not seeking the employer’s agreement to his standing for public office, as required by the collective employment agreement under which he is employed, constitute grounds for dismissal or a lesser disciplinary measure?
  • Do his subsequent media comments constitute grounds for disciplinary action?
  • Did the EPMU discriminate against Tan on the grounds of his political opinion? (This is a claim that Tan has made in the news media, but it is unclear whether he intends to proceed with it. I suspect not, although he could lodge it for the publicity and quietly withdraw it after the election.)

My view is that dismissal on the basis of Tan’s breach of contract (in not seeking prior consent) might well be found to be justified in court, but I wouldn’t bet on it. Especially if the comments that Tan claims were made by his supervisor were made and he could then reasonably argue that he was put off applying. I myself would go for a final written warning. (Note that previous warnings are not required before moving to a final written warning, as some people think. It depends on the seriousness of the action.)

I’m not sure that the court would take into account the subsequent media comments in determining the justification for a dismissal at this stage. They would certainly take them into account in deciding whether to reinstate; there’s plenty of case law on that.

As I don’t have all the facts, and those in the public arena are confusing, it’s hard to say whether Tan would be successful in an action based on breach of the Human Rights Act or the similar anti-discrimination provisions in the Employment Relations Act. I suspect not, because (1) the union never got to deliberate on whether it would consent to his candidacy (2) it has declined employees wanting to stand for left parties in the past. The latter would make it very difficult for Tan to show that he’s been treated differently.

In respect of that last issue, various right-wing bloggers have put a great deal of weight on remarks purported to have been made by Tan’s supervisor, presumably the “lead organiser” in the four person call centre. I doubt whether a court/tribunal would put the same weight on those remarks, given that it was up to the union’s executive to make the final decision.

Final points. Whale Oil states that the collective agreement between the EPMU and its staff breaches the Bill of Rights and the Human Rights Act. I think he’s talking through a hole in his head.

Also, Idiot Savant is free to campaign to change the law to mandate employers granting large amounts of unpaid leave to any and however many of their staff that want to stand for public office. Fine. Is ACT supporting him on this? Of course not. Hence, I suspect, the ridiculous allegations of racism.

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15 Responses to “Memo to EPMU: What to do”

  1. Bryce Edwards Says:

    That’s an interesting idea of a ‘law to mandate employers granting large amounts of unpaid leave to any and however many of their staff that want to stand for public office’. You sound fairly lukewarm about such a concept. To me it sounds like a very reasonable law. What are your objections to it?

    I’ve known of a number of prospective parliamentary candidates who have hesitated to stand due to trouble with their employers. I would have thought you’d be supportive of the rights of such people to stand.

    Regardless of this, I don’t think it’s fair to ask I/S if Act is supporting him on such a law change. That’s almost irrelevant. I/S is not pretending to be supportive of Act, but just critical of the EPMU’s actions.

    Bryce

    http://www.liberation.org.nz

  2. jafapete Says:

    Thanks Bryce.

    I don’t ask I/S whether ACT is supporting him on this. The question was meant to be rhetorical and aimed at you, the reader. I don’t think for a second that ACT would support I/S’s campaign. Think “compliance costs.”

    Rather, I was trying to point out in a subtle way an internal contradiction in ACT’s position. Which is why I think Hide had to resort to the totally ridiculous and unfounded allegations of racism. I’ve amended the post to make this clearer.

    For practical reasons any amendment to mandate employers to grant large amounts of unpaid leave to staff that want to stand for public office would have to include the usual proviso that this applies only where it is reasonable to do so. The average employer in NZ employs around 5 staff, after all. In the case of the EPMU, where a large proportion of their staff are actively involved in party politics, such a requirement would obviously be onerous without such a proviso. Hence the collective employment agreement provision at the heart of this matter.

    Do you disagree?

  3. Bryce Edwards Says:

    Yep – it’s a totally fair point about the contradictions in Act’s situation. Act would be hypocritical to now disagree with such a proposal, and I assume that they would. This should be highlighted, I agree.

    But it looked a bit like you were tarring I/S with the same brush. He’s not responsible for Act’s hypocrisy, but is just (rightly in my view) criticising the EPMU.

    To be honest, I’m not very clear on the EPMU’s collective agreement provision at this stage. I’ll give it some thought.

    Bryce
    http://www.liberation.org.nz

  4. Anita Says:

    Is there a case in which you would consider an employer justified in terinating an employment contract on the basis of a public political position?

    The two examples I imagine are

    1) A public spokesperson for an anti-binge-drinking organisation standing as a high ranked candidate for an organisation whose sole issue was the aim to relax alcohol sale and consumption rules as binge drinking should be a right not interfered with by the state.

    2) A teacher who stands as a candidate for an organisation whose sole aim was the decriminalisation of sex between adults and children.

    In both cases I would have thought that employer would have an argument that the behaviour of the employee (separated from their political views) was incompatible with continued employment.

    But it should be a really really hard line to cross 🙂

  5. Julie Says:

    Sorry Pete, only just seen this, kindly ignore my fresh comment on the old thread, I will read your new stuff and consider!

  6. Julie Says:

    Okie dokie, two good posts, thanks for writing them.

    I need to be a little circumspect about the specifics of this situation as I know Shawn and a number of the people involved. This doesn’t mean I have much in the way of inside information on the EPMU’s case though, which is a pity 😉

    I’m trying to work out how to put this, so bear with me. I’m wondering about whether an employer, hypothetically speaking of course, could make a case that where the employee’s core work is to deal with approaches by people for assistance their well-known political views might put those people off approaching them. When those views are diametrically opposed to being on the same side as the people likely to approach them for help.

    I’ve actually considered this myself, which is why I only started blogging under my own name whilst on maternity leave. I was concerned that my views, particularly on abortion, might put members off calling me for help when they needed it, and I didn’t want that to happen. Now I’ve got over it (which is just as well because I’m back to my union job in a little over a month!).

    But I’m not advocating political views that are opposed to those of the policies of the union I work for. I am careful to steer clear, in my blogging, of issues to do with the specific sectors I work with, so that there is no confusion that when I do put my views forward they are my employers, as they are not. Sometimes I’ll comment on other people’s posts from my expertise, but I am very careful about how I write those comments and try to use them to add knowledge and information rather than opinion.

    I’m not sure I’m making much sense here. Does anyone get what I’m trying to say?

  7. Anita Says:

    Julie,

    You’re making perfect sense to me 🙂

  8. jafapete Says:

    Julie,
    You make good sense to me too! Could an employer, hypothetically speaking of course, make a case that where the employee’s core work is to deal with approaches by people for assistance their well-known political views might put those people off approaching them.

    That’s a really tough question, but a good one. The Human Rights Act contains a number of exceptions to the prohibited grounds for discrimination that allow for the application of common sense to situations where it is unreasonable to prohibit discrimination. If we were running a lingerie shop, for example, we could not be reasonably expected not to discriminate against men. Discrimination on various grounds is allowable in private homes, for counselling services, religious organisations and so on.

    In respect of political opinion, discrimination is allowed against:

    (a) A political adviser or secretary to a member of Parliament; or
    (b) A political adviser to a member of a local authority; or
    (c) A political adviser to a candidate seeking election to the House of Representatives or to a local authority within the meaning of the Local Electoral Act 2001; or
    (d) A member of the staff of a political party.

    I am beginning to think that the Act needs to be amended to allow other political organisations to discriminate on the grounds of political beliefs. Unions provide political representation to their members, and that is a large part of their role. Arguably they should be included in any such exemption.

    As it stands, the Act doesn’t allow such discrimination, so my guess is that the answer to your question is, “Sorry, but no.”

  9. Anita Says:

    I am beginning to think that the Act needs to be amended to allow other political organisations to discriminate on the grounds of political beliefs.

    Political beliefs? Or actions that stem from political beliefs?

    I think that’s where we’re getting this all confused, it’s Tan’s behaviour being censured, not his beliefs.

    Take, for another example, a cafe where the dress code was plain black top, plain black skirt or pants, branded cafe supplied apron; everyone complies with it, everyone always has. If a staff member comes to work in a bright red Labour top, or a blue National top, or a yellow ACT jacket, or whatever – I would have thought that the employer would have a right to deal with it as non-compliance with the dress code. Just as they would if the person just felt that they preferred pink and lacy.

    Anita, Sorry, the remark was a general one, and not related directly to Tan’s case. But yes, if dress codes have been in place for a while, have not been challenged by the employees, are not contrary to any statutory or contractual provisions, and are reasonable, then they come to form part of an employee’s “contract of service”. On that basis the employer can enforce the dress code. But discrimination on the basis of political opinion is covered by the HRA and ERA. So it’s not the same.

    Note that the action of Tan’s that is subject to the disciplinary process is the failure to seek the Union’s approval before standing for public office.

  10. dave Says:

    I doubt whether a court/tribunal would put the same weight on those remarks, given that it was up to the union’s executive to make the final decision.
    What was the final decision of the union’s executive in this case?

    dave, the exec didn’t get to decide, because Tan didn’t apply.

  11. Shawn Tan & the EPMU « Jafapete’s Weblog Says:

    […] Shawn Tan & the EPMU Note: I have responded to Idiot Savant’s attack in a separate post and provided further comment on the employment issues. […]

  12. dave Says:

    Of course. Why would he given the disgraceful treatment by his employer? Therefore what relevance has a union’s executive responsibility to make a final decision have to do with this case then. Nothing. So why raise it as a relevant issue with regard to the weight that a court would put on Little’s remarks.
    it’s hard to say whether Tan would be successful in an action based on breach of the Human Rights Act or the similar anti-discrimination provisions in the Employment Relations Act. I suspect not, because (1) the union never got to deliberate on whether it would consent to his candidacy (2) it has declined employees wanting to stand for left parties in the past.
    Both points are irrelevant. I would have thought the hasty decision to suspend would have been more relevant. It will be in a PG case. Surely there are other avenues to go down before suspension.

  13. jafapete Says:

    dave, I was referring to the comments that Tan says that his supervisor made to him. He wasn’t talking about Little. He was most probably referring to the “lead organiser” in the call centre, which is much like a team leader position, and not someone with the authority to make a decision. But it’s not clear to whom, exactly, Tan was referring.

    How do you know that the decision to suspend was hasty? Can such a decision be too hasty, given that it does not disadvantage the employee [in this case — see comments below for further discussion of this point]? It’s merely a holding pattern until the matter is sorted out, which they are currently in the process of doing. It doesn’t in itself constitute a disciplinary action.

  14. Julie Says:

    In terms of suspension itself being viewed as disadvantage, I’m pretty sure there have been some Authority decisions that have headed in that direction, even when it was paid. I’m trying to dredge up memories from a talk an authority member gave to a work conference about a year ago…

    Julie, Yep, there are circumstances where a suspension can be viewed as punitive, such as where one needs to keep up flying hours or practise one’s skill. But the complainant would have to demonstrate disadvantage (it would be an employer’s action to the employee’s disadvantge), and I don’t think that Tan would be able to do this in this case.

  15. Shawn shown the door « Jafapete’s Weblog Says:

    […] by his employer, the Engineering, Printing and Manufacturing Union. (Previous posts here, here, here, here, and […]

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