News
The Revenge of the Employer
First published in The Independent, 23 January 2008.
When the sun finally sets on this generation, the Star Wars saga will be remembered as one of the great stories of our time. It is an archetypal story of a struggle between good and evil where (true to fairytale form) good eventually triumphs over bad.
One of the interesting aspects of the original trilogy of Star Wars films is the way in which they were named.
At the conclusion of the first episode (now titled "A New Hope") good prevailed with the destruction of the Death Star.
The second episode was about the consequent rise of evil - thus appropriately titled The Empire Strikes Back.
The third was, however, a concluding chapter, recounting the way in which good revived itself to overcome evil once more. With this in mind, one might have supposed that George Lucas would have titled his concluding episode The Revenge of the Jedi.
Not so. You see, as Lucas put it, "revenge is not a Jedi concept" - hence the world was left with The Return of the Jedi.
To some observers, employment law may not be entirely dissimilar.
The task of the Employment Relations Authority and the Employment Court is, of course, to ascertain which party to a dispute should be regarded as good and which evil (at least in the sense of being on the wrong side of the legal argument).
One of the curious features of our system, however, is the way in which most claims are brought by employees or unions, alleging evil on the part of an employer.
Sometimes employers triumph by resisting these claims, and other times they fail.
What is most unusual, however, is for an employer to fight back and to succeed in a claim against an employee. Revenge, just like the Jedi, is not a concept commonly associated with employers.
So in that vein, a recent decision of the Employment Relations Authority might perhaps best be described as an example of The Return of the Employer.
Hayden Parsons and Tabatha Burrow worked for the Regent Night'n'Day food store in Dunedin. Their employment agreements required them to give four weeks' notice of termination in the event that they wished to resign. It also required them to return any property belonging to the employer when they left, particularly including the uniforms that they were required to wear when performing their jobs.
Parsons and Burrow resigned from their employment, but failed to give the required period of notice to their employer. They also failed to return their uniforms.
The employer was most dissatisfied with the situation. It brought a claim against Parsons and Burrow - and succeeded.
One can imagine that the prospect of short notice provides a number of potential inconveniences for an employer.
It must, at short notice, find someone to cover shifts for the departing workers. Presumably, it must also find new employees (preferably promptly), and provide them with the uniforms required to perform their roles.
With that in mind, one might have sympathy for the employer's position. Certainly, the Authority agreed with the claim - and ordered each of Parsons and Burrow to pay their former employer amounts for the period of unworked notice, and for the uniforms that they failed to return.
The Authority was particularly influenced by the fact that the possibility of this outcome was expressly recorded in the employees' agreements.
As a legal finding, the case is unremarkable. It involves employees who willingly agreed to terms of employment which included the possibility of exactly this type of outcome.
What makes the case unusual, however, is the fact that it represents a claim initiated by an employer.
On an emotional level, one might feel that it represents a claim by a commercial organisation against relatively low-paid employees. It is in that context that an observer might consider that, like the Jedi, revenge is a concept that does not sit easily with the employment relationship.
For the employer's part, however, it may regard this outcome as giving it suitable compensation for a legitimate business cost - which it was unfairly required to bear.
Perhaps, in that case, the situation might be best described as The Employer Strikes Back.
