I hear these kinds of anecdotes all the time, mainly from people who haven't been in a union ever, or at least since the 1980s - someone was crap at their job (anything between mildly incompetent to dangerous conduct or work practice) and "The Union" saved them from getting fired.
When they are truly incompetent and the process is followed fairly, what "saved them from getting fired" often really means is that the union organiser involved has helped them to resign from their job before the axe fell, but often the outside observer doesn't know that part.
There are two general categories that workers tend to end up in the gun over:
- Competency - whether or not they can do key tasks required to do their job
- Conduct - stuff they do on the job that breaks policies or adversely affects workmates, eg sexual harassment, breaking the dress code, etc
In some cases these two areas are treated differently, but in many the procedure is simple and similar.
The person facing the complaint has certain rights, some of which have developed through case law, collective agreements and natural justice, while others are also protected in legislation:
- fair notice of the specific allegation involved, and the likely consequences if the allegation is established. The allegation must also be dealt with in a timely manner, i.e. not sat on for months and months and "saved up" along with other complaints. To often I hear of situations where a worker is just called into the office by the boss one morning for no apparent reason and discovers when they sit down that they are facing a serious complaint.
- the right to a defence - an opportunity for the worker to attempt to refute the allegation, or to explain or mitigate what happened. This includes making available to the worker any information being relied upon, eg witness statements, company policies, the identity of the complainant and any one else giving statements. The worker should have an opportunity to authenticate any statements made against them and also to respond to them, including telling the boss if they feel that the other person has an improper motive. The worker must also be given time to prepare their defence.
- a proper and sufficient enquiry into the circumstances by unbiased investigator(s). And there must be an unbiased consideration of the worker's explanation by the decisionmaker - free from predetermination and uninfluenced by irrelevant consideration. It shouldn't need stating, but it unfortunately it does - the person making the complaint must not be the person deciding the outcome.
- the right to representation - opportunity to seek and have present a representative of their choice during any disciplinary meetings, eg delegate, union organiser, lawyer, stroppy friend
- justification - the boss must be able to prove that any disciplinary action taken against a worker is both reasonable and fair in the circumstances. Any punishment must not only fit the crime, it must also be consistent with similar outcomes at that workplace in the past.
Overall, all procedures leading up to discpinlinary action must be done in a fair manner, procedurally.
Every disciplinary I have seen reasonably closely to date has had at least one flaw in terms of the rights listed above. Most commonly, in my experience, workers are not given copies of statements the boss has from other people and when they are given them is expected to respond on the spot. Despite the flaws though, the union organiser and the member will generally try to fix the problem with the process rather than let it go on so that they can challenge the result later.
If you don't go through a fair process then the outcome can be overturned - this is usually what happens in a case where someone "gets off" when to the outside observer it might look like they ought to have been fired.
It's quite simple really - it is possible to fire people in NZ, and it does happen. But if the boss doesn't treat the worker fairly then they open themselves, and their business or organisation, to liability - either through a payout or re-instatement.
So rather than blaming unions for incompetent people continuing in their work, how about looking at the processes that are used by bosses to try to move people on? And think about how you would feel if you were the person facing the firing squad.
Previous posts in this series:
- union myths - #1 compulsory membership
- union myths - #2 all unionists want to be Rick Barker
- union myths - #3 unions are just like businesses