News
Hey Boss - You're a dumb arse!
Employers who are keen to experience a new direction in management techniques must make a point of seeing the movie "Kill Bill Part I" this summer. The movie features a character, Oren Ishii, who is surely destined to become a new role model for senior managers everywhere.
Ishii is the self appointed leader of a Yakuza clan. One of the high points of the movie features a meeting of leaders of this organisation, celebrating a victory over a vaunted enemy by sharing a meal.
As often happens in business lunches of this nature, one of the members of the party (fortified with an appropriate quantity of sake) ventures to offer some views about the future direction of the organisation, and the leadership capabilities of its Chief Executive. For her part, Ishii responds to this critique of her abilities in an appropriate manner : she simply gets up from her seat, draws a samurai sword, and beheads her detractor.
It is hard to identify any real flaws with this treatment of an employment problem. The matter is addressed immediately, and there is no prospect of it being allowed to fester. The parties are open and frank in their views, consistent with the good faith obligation against acting in a deceptive or misleading fashion. Finally, the resolution of the dispute is full and final, and offers no prospect of ongoing grievance between the parties.
In fact, the only downside seems to be the need for an appropriate subordinate to take care of an inordinate amount of blood (and presumably an extraordinarily high dry cleaning bill).
Though many employers may wish that they could undertake Ishii's management style, experience suggests that a softer form of management is more common - at least in this country - and that parties are less likely to be so open and frank in their views. A recent case appears to illustrate the difficulties that can arise when parties attempt to be direct in expressing their opinions about one another.
The claimant in Day v Switch Electrical Services Limited (Unreported, Employment Relations Authority, Auckland, 24 October 2003) was an electrical trainee. It seems that in his employment relationship he enjoyed some direct communication with his supervisor, Mr Smith.
One particular day, Smith described Day's performance in his role as "bloody pathetic". Consistent with the spirit of open communication, Day responded later by describing Smith as a "dumb arse".
Sometime after this statement of frank assessment, Day decided to finish his work by having a beer in the workplace. There was some disagreement as to exactly when this drinking of beer had commenced. Day admitted that it had been made clear to him that drinking in the workplace prior to 5.00 pm was prohibited. He did, however, claim that his beer drinking had commenced so close to 5.00 pm that "it wasn't funny". Another employee suggested that bottles of beer had been opened prior to 5.00 pm, but the drinking of those bottles had commenced after the hour.
The way in which the employer reacted to these various events was direct and frank. Mr Day was called to a meeting. He was not told about its purpose nor was he given an opportunity to bring a representative. There was an open discussion about the events of the previous day - in the course of which Day admitted calling Smith a "dumb arse" and accepted that he must of drunk alcohol before 5.00 pm. Mid way through the meeting, Day perceived that his employer did not take kindly to his behaviour and asked if it was desired that he leave his employment. In response, he was informed such was "the general consensus of opinion".
As a result Day left his employment - and subsequently brought a claim for unjustified dismissal.
The Employment Relations Authority reached the view that the employer's process had been deficient in a number of different ways. It had not provided Day with appropriate notice of the meeting, nor had it allowed him the opportunity for representation and it had not made appropriate inquiries of some of Day's co workers who had witnessed these events. There had been a disparity in treatment of Mr Day - and the co workers who had admitted drinking together with him.
As a result, the Authority upheld Day's grievance, and ordered the employer to pay him five weeks' lost wages, together with $3,000 in respect of humiliation and distress.
At the same time, however, the Authority found that Day had contributed to his own demise by acting in an admittedly derogatory fashion - and by carelessly consuming alcohol in the workplace. As a result, it reduced the awards to be paid by 50%.
This case illustrates a situation which many employers would regard as consistent with open and direct communication. The fact of that openness does not, however, lead to a conclusion that an employee has been treated fairly for the purposes of employment law. A failure to follow the procedures prescribed by law may result in awards such as those made in this case. While blameworthy behaviour will not be forgiven, an employer may emerge feeling defeated for failing to adhere to accepted principles.
Put another way, we may need to wait for a slight change in direction in New Zealand's employment legislation before Oren Ishii can open a management school in this country.
