Employment Relations Amendment Bill no.2
January 2011
This is the exciting name of the Bill which includes the extension of the much debated “90 day rule” to all employers, In view of recent cases of workplace discrimination on the grounds of sexual orientation, the board agreed to send a submission to the select committee reviewing the Bill. Here is the relevant text of that submission:
As members of the Committee will be aware discrimination in the workplace on the grounds of sexual orientation is illegal under the Human Rights Act and under section 105 of the Employment Relations Act 2000. This does not mean, however, that there is no discrimination in the workplace on this basis. We have not unusually encountered past cases of such discrimination both on the part of management and of other workers, in the latter case usually in the form of bullying or harassment. We are currently monitoring just such a case involving the Wellington office of a large multi-national bank.
We are also sensible in the context of this Bill of a recent case in Christchurch with which members of the Committee may be familiar, in which a Christian based and integrated school dismissed a recently appointed teacher on the grounds solely that he was a homosexual, a clear breach of the employment law. Because of the current law he was able to take a personal grievance and was awarded substantial damages.
However, under the proposed law change to a universal ninety day probation provision, the school could have dismissed this employee solely on the grounds of his failure to measure up to unspecified requirements and would have not been required to give reasons. The employee would have no access to grievance machinery through the Employment Authority or for that matter any basis for taking such a case if he chose to pursue it through the ordinary courts.
We are aware, of course, that workers would still have access to human rights legislation in the event of discrimination short of dismissal, and it therefore seems to us doubly unfortunate that workers would lose that right when it comes to the ultimate employer sanction.
In summary, therefore, we consider that this provision opens the door to covert discrimination on the grounds of sexual orientation and will be so used by the sorts of unscrupulous employers the current law is designed to discourage. We would therefore urge upon the Committee the deletion of this provision from the amendment and its replacement with another provision which restores the right to take a case to personal grievance for those who are employed in smaller enterprises.
We would welcome an opportunity to appear before the Committee in support of our submission.
Yours sincerely
TonySimpson
Chair of Rainbow Wellington
Stop Press
I appeared before the Industrial Relations Select Committee on Thursday 16th September, accompanied by Board member Steve Farrow, to present our submission on the proposed new legislation repealing appeals against dismissals in the first three months of employment by larger employers, and to spell out the negative implications for those affected by homophobia in the workplace. Our written submission had outlined two recent cases, and Steve was able to add a third. The Committee (at least on the National side) seemed a bit taken aback by this because it was clearly an angle they had never considered. We were given a reasonable hearing however, with the exception of Tau Henare who seemed to me to be bumptious and aggressive although he stopped short of outright homophobia. It was clear enough, however, that the government has made up its mind and anything we say will not change it. This almost certainly fulfils a promise made to employer groups prior to the election in return for tangible support, and the tactic now must be to look to the Opposition to repeal this pernicious legislation when they return to office.
Tony Simpson
Chair of Rainbow Wellington
Postscript: Our fears were dismissed by the majority on the Select Committee, and the Bill went through. It is probably now up to individuals to pursue their cases through the Courts, as employers will presumably continue to use incorrect procedures at times. We will need to be particularly vigilant where discrimination on the grounds of sexual orientation is suspected to be behind the termination of employment under the 90-day law.