Farrar on Industrial Relations Ctd

David Farrar?s bold assumptions about the article on the AFFCO dispute managed to rile up a senior IR lawyer who has contacted the tipline ? with the request to remain anonymous because her claims about judicial activism could cost her cases when she is next in front of the employment court.

Affco?s employment contract commented on by David Farrar is still seen as reasonably aggressive but it is there to counter an increasing active and aggressive Employment Authority/Court where personal grievances are lost by employers on the ratio of 8 in every 10. Employers knowing this will often concede outside of court as even if they win it costs them more in time and legal fees to fight the case than to settle, tilting the balance heavily in favour of employees.

This type of clause has its roots in a move to adopt a “belt and braces” approach to termination rights. The Employment Court has awarded so many PGs against an employer on the basis that their ability to end an employment relationship was unclear, ambiguous or questionable. The onus is on the employer to show they have the right to sack the employee, and if there is ambiguity is always the employer who will lose.

The more you can put that doubt to bed the stronger your case in any PG for wrongful termination. Further the greater clarity and certainty you can provide around the respective rights of employees/employers (as a irreconcilable difference clause purports to do) the less likely you are to raise frivolous claims.

This clause is a ?legitimate response to an increasingly interventionist and active employment bench. A precautionary approach to the uncertainty that current employment law provides, and the cost to employers of having to sack dud employees who then take personal grievance claims.

No surprise here. Labour introduces industrial relation laws that allow its activist judiciary to impose more unnecessary costs on employers, slowing economic growth. This is I understand the underlying issue that the Ports of Auckland faced, an activist judge willing to test prior case law to prove a personal point.