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An employee with a bone to pick
A freezing worker, a new policy and a tale of frustration.
A hallmark of a successful participant in any service industry is the ability to tailor services to the needs of a particular client. As a recent case demonstrates, changing a business operation to suit those needs, however, is something which needs to be done in careful consultation with affected employees.
The applicant in Anderson v Advanced Foods NZ Limited (Unreported, Employment Tribunal, Napier, 27 September 2001) was a freezing worker with the unfortunate job title of "Boner" (as an aside, one can only speculate that if we lived in the more euphemistic environment of the United States a job title such as this would be more likely to be along the lines of "Bone Removal Technician"). A significant customer of the employer was a large British supermarket chain. Trouble began in 1998 when this significant customer announced to the employer that in order to secure its ongoing custom the employer would have to make certain that all freezing work employees observed a very strict code of hygiene (which presumably exceeded previous standards).
In concept, a person of common sense would probably find it hard to take issue with an employer taking steps to ensure the continued custom of an established major client. In doing so, however, the employer must consult with any employees whose jobs may be affected by the change - this obligation is now expressly noted at section 4 of the Employment Relations Act (which provides that as part of the obligation of good faith an employer must consult with employees about the effect of any changes to the employer's business). The employer in this case, however, chose to bring about change by introducing a new employee handbook encapsulating all of the new standards required to secure the customer's business. It ran a comprehensive induction programme, introducing the features of the new processes and requiring staff to sign an acknowledgement that they had learned and understood the new code.
A difficulty arose because in addition to the new hygiene practices the handbook sought to introduce some other (and arguably unrelated) policies - such as allowing the employer to conduct searches of employee property at certain times. The employer maintained that all of these changes were at the behest of the customer - though this was not entirely the case.
A small number of employees refused to indicate their acknowledgement and acceptance of the new handbook - ostensibly because of their concerns about some of these other matters. The employer reacted to these employees (including the applicant) severely: it told them that if they did not accept the terms of the handbook they would be redeployed into other work (so far as any was available). When the applicant reaffirmed her strong views about the handbook she was given a number of relatively menial tasks - such as cleaning toilets and removing graffiti - instead of her normal work. Eventually, under protest, she signed up to the handbook and was returned to her previous position (although she claimed that she was subjected to ongoing hostility from fellow workers, who allegedly occasionally threw meat products at her). She made a claim, however, alleging that she had been unjustifiably disadvantaged in the way that she had been treated.
Ultimately, the Employment Tribunal agreed with the applicant's arguments (although it is noteworthy that almost three years passed before a decision resulted). The Tribunal held that the employer had attempted to force unwanted conditions upon employees in an unreasonable manner - and that it had attempted to justify these changes on the false premise that they had been requested by an important client. The Tribunal ordered the employer to pay the employee the wages which should have been paid through the period of redeployment, compensation of $6,000 and a contribution to legal costs.
This case does not represent a principle that change may not be brought in the workplace at the request of a customer. Far from it, such change may be appropriately recognised as an ordinary consequence of business. In introducing any such change, however, an employer should be at pains to ensure that it consults adequately with its employees. That consultation does not mean that the employer has to obtain the agreement of all employees before effecting change - it does, however, mean that employees should be informed about all proposed changes and their views should be taken into account in making a decision to bring about those changes. In this case, the employer had attempted to introduce by a side door some changes which had not been required by the customer, which were ultimately held to be unreasonable, and in respect of which it had closed its mind to employees' views, simply insisting that the change be agreed as a condition of ongoing employment.
Perhaps the moral of the story is that there is no real substitute to open and clear procedure in bringing about change. Employers would do well to ensure clear communication in matters such as this - which would also have the welcomed benefit of ensuring compliance with employment legislation.
