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The boss who didn't get what he bargained for
If you are as old as me, you may remember the great New Zealand Department Store.
You know, names like the DIC, McKenzie's or Farmers (well, I guess that last one is still around).
Good old-fashioned stores with salesmen in waistcoats (picture "Are You Being Served"?), female sales assistants whose names necessarily include the prefix "Mrs" and, of course, a Complaints Department.
Imagine being the person in the Complaints Department. All day, coping with people who – quite simply – were upset about something to do with your store. They must have had the patience of a saint.
You see, there is something about human nature which makes us very upset if we don't get what we've bargained for.
The law recognises this – and there are any number of avenues that dissatisfied consumers can take – including, for example, under fair trading and consumer guarantees legislation.
But what about employment law? What if we enter into an employment contract, and don't get what we expected? Is there a Complaints Department that will give us our money back?
The answer – probably frustratingly – is maybe.
On the one hand, an employment contract is like any other contract – and action can be taken where one party to it has enticed the other to enter into it by using some sort of misrepresentation.
But where the "bad bargain" is a result of an innocent mistake, the situation is different – as a recent case illustrates.
The employer in Shacham and Wright Spa Pools Limited (Unreported, Employment Relations Authority, Wellington, 7 June 2005) ran a business selling spa pools. It needed a new salesperson – and Ms Shacham applied for the job.
The role required the successful candidate to do some heavy lifting (to move the pools and associated chemicals around). At the interview, the employer asked Shacham if she was "fit" (which apparently was intended as an inquiry about her ability to do lifting work). Shacham said that she was.
At the time that she made this statement, Shacham was telling the truth. There was no reason she knew of that would prevent her from lifting spa pools.
And Shacham succeeded in getting the job.
But, in-between her successful job application and her first day at work, Shacham found out that she was pregnant. Her doctor told her not to lift weights in excess of 10kgs.
Soon after starting work, Shacham told her boss that, because of her pregnancy, she would not be able to undertake lifting work. The employer responded by asking her to a meeting the following day – at which she was told that because she was unable to fulfil the duties of her position, the company could not continue to employ her.
On a philosophical level, you would perhaps be forgiven for having sympathy for both sides to this unfortunate situation.
On one hand, the employer wanted somebody to do a particular job – and it turned out that Shacham couldn't do what she initially thought she would be able to. From the employer's perspective, it was a bad bargain.
On the other hand, Shacham had done nothing wrong. She had told the truth about her physical abilities – and genuinely wanted the job. Why should she be denied it simply because she was pregnant? She brought a claim, alleging that she had been unjustifiably dismissed.
And the Employment Relations Authority sided with Shacham. Relying upon the relevant provisions of the human rights legislation (which are also contained in the Employment Relations Act), the Authority held that the employer's actions were discrimination on the grounds of sex (which includes pregnancy). It found that the employer was under an obligation to consult with Shacham – particularly to find out more about her circumstances (and to appraise itself of the fact that she had not misrepresented herself at the job interview). It was under a positive duty to support its pregnant employee – including by taking whatever reasonable steps were available to it to ensure that she could continue to work despite her inability to undertaking lifting activities.
In the event, the Authority recognised that, in all likelihood, Shacham would have been obliged to take leave or early commencement of parental leave. It ordered the employer to pay Shacham two weeks' salary to compensate her for lost wages.
It also ordered the employer to pay $15,000 to compensate Shacham for her distress at losing her job.
This case – and the significant award of compensation that went with it – is a reminder to employers that, no matter how bad their employment bargain, there is a positive obligation to take reasonable steps to accommodate a pregnant employee.
