In this country, he says that, unless the contract provides for it, there’s no scope for unpaid suspensions. “And often the options for punishment do not fit the so-called crime. There should be more intermediate punishments and each level should be more explicit about the types of offence. At the moment, our employment law does not provide for this.”
Harcourt says while the current law allows employers degree of latitude in how they approach disciplinary issues, it also creates ambiguity. “The Employment Relations Act could be amended by specifying unpaid suspensions of different lengths as punishments for various categories of misconduct.
“For example, one-day unpaid suspensions for minor misconduct, such as unexplained lateness; up to month for more serious conduct where dismissal is not warranted, perhaps for negligence by an employee that resulted in substantial damage to property.”
Harcourt notes people are sometimes dismissed when lesser punishment, other than warning, would be more appropriate.
“The current aversion to reinstatement might reflect the absence of any intermediate punishments. Full reinstatement can often send out the wrong message about potential tolerance of wayward behaviour but unpaid suspensions could send the right message.”
Professor Harcourt also says when people have been unjustifiably dismissed, especially in redundancy situation, they’re often insufficiently compensated. “For example, reimbursement for lost earnings often doesn’t go beyond three months and never beyond two years, even when employees have been out of work for much longer. You’re more likely to be compensated when an employer ‘messes up’ the dismissal process.
“Compared to the US, where there is very limited protection against dismissal, New Zealand’s system delivers better outcomes in terms of remedies and punishments, but that doesn’t mean we’ve got it totally right. We could still do better.”
