Now I've seen it all...

[Virago]

Apparently you can threaten to kill your boss - and his children - and can't be sacked on the spot for it.

http://nz.news.yahoo.com/a/-/top-stories/14050196/man-who-threatened-boss-gets-6232-compo/

Employment Relations Authority member Robin Arthur said "...a fair and reasonable employer needed to launch a disciplinary process which gave Mr McClung an opportunity to explain himself, and possibly apologise, and consider what to do with an open mind. Failure to do this meant dismissing Mr McClung on the spur of the moment was unjustified."

[Berries]

I guess the downside for Joshua McClung of taking this case to the ERA is that anyone wanting fencing done won't touch him with a barge pole. Is a lifelong and international reputation as a dick worth six grand?

Probably not.

[Big Dave]

The Law is an Ass dontchaknow.

[onearmedbandit]

Fucking disgusting.

[EJK]

Yeah can't fire on the spot but how about transferring him to ward 21?

[unstuck]

PG claims are a common thing down this way it seems. I know one employer that has had maybe 5/6 claims against him in the last few years. At least 2 of those were 10 grand payouts.

[Edbear]

As the employer, he should counter by having the guy charged with threatening to kill.

[Tigadee]

The employer should have called the police on the spot after the clear death threat to have McDung arrested and/or removed off the boss's premises.

[oneofsix]

The employer should have called the police on the spot after the clear death threat to have McDung arrested and/or removed off the boss's premises.

Agreed, but can you see how this is different from employment law? Interestingly enough the police probably would have ended up covering much of the same ground the employment court judge mentioned, was the threat real, was it heat of the moment with no real intent, was the offender ready to back down etc. All the stuff the employment process is meant to cover.

If the employer real felt him and his family were being really threatened do you think he would have just fired the guy, making him more angry? If I felt the threat was real I would have been calling the cops or taking other steps to ensure my and my families protection.

[Tigadee]

Witnesses too, would be important. If there are others to corroborate the employer's POV that the death threat seemed genuine, then he has sufficient cause to call the police to take action. The supervisor is certainly a witness, and the threatening text messages would also back the employer too, I would've thought.

[avgas]

Joshua McClung is a dick.

Google search keywords : DO NOT HIRE Joshua McClung, DO NOT HIRE HIM!

That ought to make things harder for him in future.

[caseye]

The employer should have an ABSOLUTE RIGHT to immediately fire the prick.
Naturally if he had any brains he'd ring the Police and alert them to the threats made and implore them to go and gather his family in case they were targeted.
Oh wait up, we live in NZ.
First the fucker has to actually make good on his threat before they can act.
Oh and as if that isn't enough someone has! to have been hurt before he can even be arrested and charged with anything.
We're too soft these days.

[onearmedbandit]

Yup I'm currently dealing with someone who has made threats against my 5yr old daughter and me, threats to kill. There is a protection order against him from my ex-wife covering her and my daughter, but to him that means nothing. Went to the police this morning, they were quite good actually. Gave us the option of having him arrested right now or given a warning.

[mashman]

Personal threat, fine, probably just someone under stress mouthing off, so I can see why the option for disciplinary action could be a first point of call... threatening someone's family smacks of absolute malice and whilst I'd hmmmmm sacking him for a personal attack, he'd be lucky to get away with just being sacked for the family threat. I guess we don't know the pressure he was under, not that it justifies the family threat, but financial pressure can push people to doing and saying things they ordinarily wouldn't do. I've got a solution for that lying around here somewhere :innocent:.

[jasonu]

Yeah can't fire on the spot but how about transferring him to ward 21?

or H division maybe?

[skippa1]

WINZ encourage the pricks now. I have had several that I have dismissed or have left of their own accord, they go to WINZ and they are advised to take a PG. I was talking with the local WINZ person they have been instructed to issue this advice as it may delay the person getting on a benefit.....OR the employer may have a change of heart and reinstate them. Fuckin ratshit when you employ people.....the system is against you all the way

[tigertim20]

ha, wow. seems like its fucking near impossible to fire someone once youve given them a job nowadays huh?


Agreed, but can you see how this is different from employment law? Interestingly enough the police probably would have ended up covering much of the same ground the employment court judge mentioned, was the threat real, was it heat of the moment with no real intent, was the offender ready to back down etc. All the stuff the employment process is meant to cover.

.
correct, to make a conviction stick for threatening to kill, the victim must convince the court that they felt, at that time, that the threat was legitimate.

Yup I'm currently dealing with someone who has made threats against my 5yr old daughter and me, threats to kill. There is a protection order against him from my ex-wife covering her and my daughter, but to him that means nothing. Went to the police this morning, they were quite good actually. Gave us the option of having him arrested right now or given a warning.

a shame though, those orders look great on paper - but all the mean is 'after said person has broken into your home and half killed you, he will get slapped with TWO wet bus tickets by a friendly judge, instead of the usual one'
they afford no actual protection other than the implied (false) sense of safety.

Hope that works out OK for ya.

[Kickaha]

ha, wow. seems like its fucking near impossible to fire someone once youve given them a job nowadays huh?

Not really, but you have to make sure you follow all the correct procedure or you'll get hammered

[Oakie]

....the system is against you all the way
No. There is a system but it's not against you, you just have to play by it's rules. Think of it as any old sport. There are rules and if you don't abide by them you're probably not going to do so well. In a game of footy you can't just smack someone in the head even if they have done wrong. Gotta play by the rules.

I've been involved in 6 dismissals at work now. It's not an easy process but we've not had a PG in the 5.5 years I've been there. Playing by the rules gives the offender a fair hearing but also makes dismissals, when they happen, fairly safe.

If this case happened at my work they guy would be stood down on pay and an investigation would happen. No way I'd dismiss immediately ... probably not for nearly anything. We've even had someone assault another person and it was three days before they were gone.

Bottom line is that more PGs succeed because of flawed procedure rather than the facts of the case.

[skippa1]

No. There is a system but it's not against you, you just have to play by it's rules. Think of it as any old sport. There are rules and if you don't abide by them you're probably not going to do so well. In a game of footy you can't just smack someone in the head even if they have done wrong. Gotta play by the rules.

I've been involved in 6 dismissals at work now. It's not an easy process but we've not had a PG in the 5.5 years I've been there. Playing by the rules gives the offender a fair hearing but also makes dismissals, when they happen, fairly safe.

If this case happened at my work they guy would be stood down on pay and an investigation would happen. No way I'd dismiss immediately ... probably not for nearly anything. We've even had someone assault another person and it was three days before they were gone.

Bottom line is that more PGs succeed because of flawed procedure rather than the facts of the case.

what a load of bulls arse....its not about whether the PG is succesful or not, its about the fact that they bring one at all. I have employed up to 95 FTEs (including managers that earn up to $90k/pa) and have been employing people for over 20 years. Its not about whether they or you get a fair go, its about the fact that they are encouraged to take a PG and the management cost involved in dealing with them. I have spent a fortune over the years dealing with pricks that think they may get a payout. I have sat in mediations and have sat in employment hearings and I can tell you from hard earned experience that its not a matter of process or anything else, it has everything to do with how much you as the employeer are prepared to spend defending your position and what the balance is between spending management time defending or paying them out so you can move on. And WINZ encourage them to do it.
There is a process, dont get me wrong, and it must be followed, but it has fuck all to do with the employee bringing a PG and your cost.

[98tls]

Bottom line is that more PGs succeed because of flawed procedure rather than the facts of the case.

How many hours are wasted to ensure the right "procedure" eh not to mention how many otherwise unemployables are employed to see it through.What ive always found somewhat amusing is all the govt departments full of otherwise unemployables employed to see the average working man has some rights have made far more blokes unemployed than what they were designed to do.:wacko:

[Oakie]

How many hours are wasted to ensure the right "procedure" : Not wasted. Invested.

[Oakie]

what a load of bulls arse....its not about whether the PG is succesful or not, its about the fact that they bring one at all.

Yeah. That part hurts. Apparantly the average cost the year before last of succesfully defending a PG was $9800. And that was to win!. The point I make though is that if your reason to dismiss is 'an action a reasonable employer could take' and your process is not flawed then it is much less likely that a lawyer will go into bat for a loser ... although unless they are a 'no win - no fee' type then they still get paid regardless. Perhaps it's the lawyers that are the problem.

[unstuck]

I got fired from a gold mine once for threatening to give the foreman a bit of attitude adjustment, and when I went into social welfare to look for another job, they tried to talk me into taking the company to court for wrongful dismissal. They said I could probably get around 8-10 grand. Not my cup of tea though, I would of settled for a couple of rounds with the foreman. Learn and move on was and is my motto.:yes:

[Ocean1]

it has everything to do with how much you as the employeer are prepared to spend defending your position and what the balance is between spending management time defending or paying them out so you can move on.

Which is why the majority of claims are for about $8k, just a tad less than the cost of fighting it.

And it's the businesses that take the easy way out that keep the PG rort working. If they simply followed a few basic rules and fought every claim on it's merit the whole dodgy industry would fold.

[Woodman]

I had a colleague that was taking a guy through the disciplinary process only to have the guy hand in his resignation before it was finished. The guy went to winz to apply for the dole and they said he had to wait the stand down period because he resigned, but he could get the dole straight away if he had a personal grievance againnst his employer. He took the pg and the dole and got $6k for constructive dismissal. Its friggen bollocks, but taught me a lesson when I caught a guy on camera flogging cash from the till, his lawyer at the final meeting offered up his resignation. I refused to accept it until after the final decision. She pushed very very hard for me to accept it to. Pretty sure she was thinking of a Pg as well.

the Winz staff should not be encouraging this process, its not their job.

[Tigadee]

I heard somewhere that it's cheaper to kill someone [manslaughter, not murder - something like that] than to fire them... Probably not true although may not be far off! LOL

[Oakie]

, his lawyer at the final meeting offered up his resignation. I refused to accept it until after the final decision. She pushed very very hard for me to accept it to. Pretty sure she was thinking of a Pg as well.

Yep. That's the way. You only accept their resignation after you have told them that the decision is to terminate. That way you get to defend any PG on the circumstances of the case rather than against a constructive dismissal claim. The last five of ours have each gone that way. Generally after we tell them the decision is to terminate we give them the chance to offer a resignation so they have a CV which shows they resigned rather than having a dismissal. We don't want to ruin their prospects, just move them on, hopefully a little wiser.

[Oakie]

I heard somewhere that it's cheaper to kill someone [manslaughter, not murder - something like that] than to fire them... Probably not true although may not be far off! LOL

Not cheaper, just quicker.

[Tigadee]

That is, the financial penalty is less severe for manslaughter than dismissing an employee?

But I guess that was just a myth anyway... :laugh:

[hellokitty]

The employer should have an ABSOLUTE RIGHT to immediately fire the prick.
Naturally if he had any brains he'd ring the Police and alert them to the threats made and implore them to go and gather his family in case they were targeted.
Oh wait up, we live in NZ.
First the fucker has to actually make good on his threat before they can act.
Oh and as if that isn't enough someone has! to have been hurt before he can even be arrested and charged with anything.
We're too soft these days.

hmmm when i spoke to police about my stalker-ex, i was told they can't do anything until he does something to me.... i said if i turn up dead then maybe they might believe me?

[nzspokes]

hmmm when i spoke to police about my stalker-ex, i was told they can't do anything until he does something to me.... i said if i turn up dead then maybe they might believe me?

I have the same issue with my ex-wifes ex-boyfriend. Cops cant/wont do anything. Her new boyfriends a pussy and wont go sort the guy out. If the ex-boyfriend turns up when my kids are there I will have to.

[Oakie]

That is, the financial penalty is less severe for manslaughter than dismissing an employee?

But I guess that was just a myth anyway... :laugh:

Yeah, financial penalty probably is smaller (although I have seen large reparation payments) but there's no chance you'll be doing time behind bars following a PG.

[skippa1]

Not wasted. Invested.

nup....its wasted. Wasted simply because the employee doesnt have the same requirement to adhere to any process when they wrong you.........they can drag out the process, postpone meetings, bring unrelated matters to the table, bring a myriad of "support people", talk to the media and generally make your life a misery because they fucked up. In all cases they are treated as the innocent victim of the almighty employeer that has massive profits at its disposal thanks to the combined efforts of the poor oppressed worker. With the requirement to adhere to more and more stringent H&S, NZTA, OSH........compliance, employment law, a good portion of management time is taken up with compliance and human resources. It gets to the point where the smart thing isnt to create jobs, its to invest in something with lower return but less grief.
Imagine if your line managers had more time to grow the business, concentrate on streamlining process, work on relationships within and outside the business...........we might get the opportunity to employ more people, the business might be more profitable which would flow through to better wages and conditions happier staff, shit, maybe even zero turnover of staff.
I tried to employ 2 labourers. WINZ sent me 10 applicants down. Due to the nature of the job, they had to pass drug tests. When informed of this, 8 walked straight out. Two were tested and one passed. The one that passed started work, he had an accident at work a while later and when drug tested he failed. He was got a lawyer involved and wasted a whole lot of time to the point where you are better off paying him out a couple of grand and starting again.....
I have had a couple of victories, but they are only moral ones, got paid out through the employment court by two guys a total of $30k, but when you weigh that against the hours taken, legal costs, travel to their town, witness costs and worse still, the money that they stole and business reputation they messed up while employed....you dont even break even.

[skippa1]

Which is why the majority of claims are for about $8k, just a tad less than the cost of fighting it.

And it's the businesses that take the easy way out that keep the PG rort working. If they simply followed a few basic rules and fought every claim on it's merit the whole dodgy industry would fold.

I do agree but its a collective thing, you as one employeer are not able to achieve that and if you are in a business with skinny margins, you have to consider profitability over the collective good. No ROI.....no investment.....no business:wait:

[Oakie]

nup....its wasted. Wasted simply because the employee doesnt have the same requirement to adhere to any process when they wrong you.........they can drag out the process, postpone meetings, bring unrelated matters to the table, bring a myriad of "support people", talk to the media and generally make your life a misery because they fucked up.

They can try but if you've followed good process it does them no good. That's why it's an investment. Well it works for us anyway. My boss started the whole good process thing when she arrived nearly 8 years ago and the single PG taken against us in that time was unsuccessful.


I tried to employ 2 labourers. WINZ sent me 10 applicants down. Due to the nature of the job, they had to pass drug tests. When informed of this, 8 walked straight out. Two were tested and one passed. The one that passed started work, he had an accident at work a while later and when drug tested he failed. He was got a lawyer involved and wasted a whole lot of time to the point where you are better off paying him out a couple of grand and starting again..... .

I hear what you're saying on WINZ referees. Never had a good one. Most recent one (last week) went: "So you have no convictions?" "Ummm, no". I heard the hesitation so asked again at the end of the interview ... "No" she said. Sure enough the police check came in the following week and had about 15 convictions. As far as druggies are concerned I inserted the following line into our application form "Our workplace has zero tolerance for drug use. Would you consent to a drugs test as part of the recruitment process?". Tends to put them off. Oh, we don't actually do drug testing ... just asking if they would consent to a hypothetical test :)

I dunno. Perhaps our different perspectives are from being in different industries. I probably employee quite different people to you.

[Woodman]

Imagine if your line managers had more time to grow the business, concentrate on streamlining process, work on relationships within and outside the business...........we might get the opportunity to employ more people, the business might be more profitable which would flow through to better wages and conditions happier staff, shit, maybe even zero turnover of staff.

Wouldn't it be wonderful.

[Kickaha]

Oh, we don't actually do drug testing ...
We do as part of the pre employment check, I think one person out of probably the last 25-30 has failed, it doesn't mean the ones that pass haven't been dickheads though

[Oakie]

We do as part of the pre employment check, I think one person out of probably the last 25-30 has failed, it doesn't mean the ones that pass haven't been dickheads though

Haven't had any drug problem in my 5.5 years there although I did toss a couple last year for drinking at work. Bought a couple of breathalysers on the strength of it because we relied on their admission that they had done it.

[skippa1]

They can try but if you've followed good process it does them no good. That's why it's an investment. Well it works for us anyway. My boss started the whole good process thing when she arrived nearly 8 years ago and the single PG taken against us in that time was unsuccessful. .
My point exactly. I does them no good.....and likewise you. Just costs time and money. Our comapny employs over 300 people and believe me, the process is sound. It is written, step by step, by Simpson Grierson and Harrison Stone. It doesnt mean they cant challenge you.




I hear what you're saying on WINZ referees. Never had a good one. Most recent one (last week) went: "So you have no convictions?" "Ummm, no". I heard the hesitation so asked again at the end of the interview ... "No" she said. Sure enough the police check came in the following week and had about 15 convictions. As far as druggies are concerned I inserted the following line into our application form "Our workplace has zero tolerance for drug use. Would you consent to a drugs test as part of the recruitment process?". Tends to put them off. Oh, we don't actually do drug testing ... just asking if they would consent to a hypothetical test :)

I dunno. Perhaps our different perspectives are from being in different industries. I probably employee quite different people to you.

Drug testing IS mandatory as part of our employment process and they still come. They cheat and use someone elses piss, they buy products from hippy stores to help them through, they drink litres and litres of water to flush their systems.....We have mandatory testing after near miss or accident and in our industry, it is a 90% chance they fail. We employ from lower/mid socio economic groups and they just dont give a shit. Really, they cant even think further ahead than smoko.