January 11, 2005

Abusive and filthy

Ben Thomas fact checks and Mr Neil Falloon writes...

Locally, it has been a long, slow news summer. Thank God, then, for Rodney Hide. As he does every year, the ACT leader has beavered away over the holidays, weaseling through the country, ferreting out injustices and iniquities. He has uncovered one scandal that he believes may be the basis for a mainstream news item. It’s that darned employment legislation again (the following post from his weblog is reproduced in full):

You are a hardworking couple. You strike out on your own. You employ a local youth. He turns up drunk, abusive and filthy. He swears at your other staff and your customers. Not just occasionally – regularly.

You ring the Employment Service. They advise you to provide verbal warnings and then a written one.

The written one gets screwed up and thrown back at you. The young man quits. He tells you where you can stick your job. He physically threatens you.

He takes you to the Employment Relations Authority. The Authority finds that you summarily dismissed the young man and that dismissal was not justified. The Authority orders you to pay the youth $10,000.

You write to the business-friendly government. They write back sympathetically but explain there’s nothing that they can do.

You go bankrupt. You ask yourselves, what actually did we do wrong?

True story.

Hide provides enough information for anybody who follows employment case law to identify the parties involved.

The case referred to was a public decision issued by the Employment Relations Authority. However, linking names to Hide’s accusations of a drunk, abusive, filthy, potty-mouthed, aggressive employee would amount to an invitation for defamation proceedings against both us and Hide. Therefore, we are going to adopt Hide’s terminology and refer to “the employers” and “the employee”.

The employers were a couple who hired a teenage man to work in their small business. Following concerns about his performance and a discussion with the Employment Relations Service, the male employer issued the employee with a written warning. The employee screwed up the warning and threw it at the employer. The two argued and had a physical confrontation outside.

It appears the employee was a punk: he was accosted at the store by the mother of local youths he had bullied. His performance was allegedly shoddy.

Yet, when the teenage employee claimed he had been unjustifiably dismissed, the Authority found in his favour and ordered the employers pay $3,500 in lost wages, $5,500 for distress, and a $750 penalty for not having a written employment agreement. Costs took the total bill over $10,000.

Why did the Authority come down so hard on Hide’s couple? “What actually” did they do wrong?

They didn’t show up.

As the Zephyrs (the fictional band of Air New Zealand advertising) will tell you, being there is everything. The employers did not attend the hearing of the personal grievance claim against them. They did not instruct a solicitor to appear for them. They did not even lodge a statement of evidence. *

The only evidence the Authority member heard was that of the teenage employee and the teenage employee’s mother. The Authority did not hear that the teen was “drunk, abusive and filthy”, but that he was a fine young man doing his best to get ahead.

No one argued to the Authority that the employers may have followed a fair process of issuing verbal warnings and then a written one. The Authority heard instead that no prior warnings had been issued and that the teenager was handed a written warning when he was visiting his place of work as a customer, on his day off, in front of the public.

No evidence was presented to suggest the teen employee resigned. In a follow-up letter, the employer himself described the employment termination as a dismissal.

The Authority was not presented with any evidence that the employee physically threatened his employer. In fact, it heard that the employer ran after the employee, grabbed him by his collar and held him against the wall of a nearby shop.

Even with one-sided evidence, the Authority discerned that the employee was no angel. His initial awards were reduced by 30 percent because of his contribution to events.

It is possible that the result was unfair to the employer. Based solely on reading the case, it is hard to muster much sympathy for the teenage employee. However, most court and Authority cases are decided on disputed facts rather than disputed law. If one party elects not to be heard, the Authority misses out on at least half the information it needs for a fair decision. The Authority cannot be pilloried for failing to take into account material of which it was not aware.

Perhaps this is a simple case of a story that didn’t have legs that Hide decided to feed to his blog audience as a cheap feed of meat.

However, this brief article, titled Labour Justice, is emblematic of an unfortunate movement in internet-based political commentary. The generally accepted purpose of a weblog is to enable writers to include more information, particularly primary sources, than is possible in print. This allows for comprehensive yet brief articles (generally through hyperlinks, which are really just an efficient way to out-source footnotes). But the new trend in New Zealand is for weblogs to be used as tools for the instantaneous, and continuous, gratification of political prejudices.

Within four days, Hide’s employment case article had attracted 28 comments from supporters (decrying the Labour government) and opponents (denouncing Hide as a fraud). Neither side was fully correct because both were attempting to argue on the basis of a childish cartoon analysis of a complicated and unsourced Authority determination.

Meanwhile, Hide had moved onto posting unflattering pictures of Helen Clark's dentistry.

Hide’s blog is, at best, an interesting experiment in real-time democracy. The long-term significance of the experiment will be its success in making more information available to the electorate, not less. To put it another way: no one should leave the website dumber than they arrived. Willful obscurantism is unhelpful and even more unbecoming than publishing images of the prime minister’s teeth.

There is a second point that will be relevant mainly to the shrinking group of ACT voters. The party needs more firepower than this to avoid oblivion in the next election. Professor Jack Vowles, the head of the Politics Department at the University of Auckland, said in his analysis of the 2002 election results that core ACT support is steady around 3%, and any increases are due to situational campaigning. Performing to the echo chamber of a small online audience wastes both resources and time. The party has little of either.

* The employers claimed they failed to appear before the Authority because a daughter was in hospital. The hospital visit was in fact the day before the investigation. No explanation was offered for failing to submit a statement of evidence.

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