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Making an employee an offer she can't refuse
Earlier this month the world mourned - or at least acknowledged - the death of one of the most famous organised crime bosses of all time.
John Gotti was known as the "Teflon Don" because for many years the combined might of America's law enforcement agencies could not make a charge stick against him. Gotti, the head of New York's notorious Gambino family, finally had his luck end in 1992 when he was convicted of murder, extortion and obstruction of justice. He was sentenced to spend 100 years in jail. He died of cancer in a prison hospital on 10 June 2002.
Perhaps as a consequence of running a "family" business, John Gotti's organisation was not overwhelmed by employment problems.
His health and safety record was exemplary. For example, in 1980 when a significant hazard caused serious harm in his workplace (his 12 year old son was accidentally run over by a neighbour), he acted swiftly to eliminate the source of the harm (the neighbour went missing soon after and has never been seen since).
Claims of disadvantage and unfairness in the Gambino workplace were dealt with seriously and swiftly. A dispute involving a co-worker, Paul Castellano, was resolved after the involvement of an associate known as "Sammy the Bull", who specialised in an unorthodox (but remarkably effective) mediation style. Mr Castellano has had no further grievances.
Not all family problems in the workplace can be resolved as easily as those which may have arisen in the Gambino family. In fact, as a recent case demonstrates, the existence of family-related issues can provide particularly sticky issues for employers.
The case of McCarthy v Television New Zealand (unreported, Employment Relations Authority, Auckland, 5 June 2002) is a story of a woman and her ex-husband. Ms McCarthy had been employed by TVNZ as an editor on a six month contract. During this period she applied unsuccessfully for the permanent position of Team Leader Editing. It transpired that her ex-husband was successful in obtaining this position.
Ms McCarthy was clearly upset about the fact of her ex-husband's success in obtaining this job - and made her dissatisfaction known to her employer. Amongst other things, she said that TVNZ had failed to consult with her prior to making a decision to hire this new employee. She said that she could not be in close contact with her ex-husband - and that she had real concerns about being required to report to him in her work. As a result, she said that the prospect of her ex-husband's employment should have been raised with her prior to the decision to hire him.
TVNZ took some steps to allay Ms McCarthy's concerns - assuring her that she would not have a direct report her to ex-husband. It said that it was satisfied about her safety and refused her requests to be transferred to another team within its business.
The Employment Relations Authority agreed that TVNZ had acted reasonably, and had not breached a duty to consult with Ms McCarthy. The Authority said that while the employer might have realised that there was a likelihood of a degree of acrimony between Ms McCarthy and her ex-husband, there was nothing to suggest that the relationship between the two was such as to give rise to concerns about health and safety in the workplace.
The Authority noted that a different conclusion might have been reached if, for example, the employer had been aware of violence in the relationship - or of the existence of a non-molestation order. In the absence of such factors, however, the Authority concluded that it was an unfortunate reality that sometimes people who do not get on are required to work with each other. However, unless one person behaves towards another so as to disadvantage him or her, the law will not intervene - or require consultation by the employer.
The Authority observed further that TVNZ would have been acting contrary to the Human Rights Act by refusing to hire the ex-husband on the basis of his previous marriage to Ms McCarthy.
One cannot help but have some degree of sympathy for the employer in this case. Its desire to employ the best person to perform a particular job had to be balanced both with a need to be fair to its existing employees - and with the legitimate interests of the person being hired. In the end, the absence of any danger signs meant that TVNZ could employ Ms McCarthy's ex-husband without consulting with her.
We can only ponder how Mr Gotti's personal style of management may have addressed this particular family problem. Unfortunately now, we may never know?
