A pregnant friend of mine, who is also a lawyer, was recently told by her midwife that it was likely that she would need to have a caesarian section (commonly known as a c-section) to deliver her baby.
But, she said - panicking - "I watched Grey's Anatomy recently and
they were doing a c-section and they ended up almost amputating the baby's arm..."
The midwife calmly responded "you're a lawyer aren't you?" To which my friend replied that indeed she was (an employment lawyer too no less), to which the midwife countered "And your job is like Boston Legal isn't it?" Touché my (much relieved) friend replied.
I was reminded of that anecdote when, at something of a loose end while on secondment in Christchurch last Tuesday night, I ended up watching The Apprentice. While the TV programme is billed as the most important job interview the candidates will ever go through, it bears very little resemblance to the hiring (and hopefully firing) practices of most employers. That is, of course, very good news.
Still on the subject of hiring and firing (this is after all an employment law blog), is it more good news to read that a recent survey shows that employers are feeling more confident about hiring staff. Business confidence is up, so hopefully that means that unemployment will start to come down. Is that a trend you're seeing in your industry?
However, with more employers hiring more staff, it is even more important for employers to ensure they are following a correct process. In terms of process, one of the most important things, that is often overlooked, is the importance of having a clear and robust employment agreement.
And, making sure that document is not only read and understood by the employee prior to commencing work, but that it is signed by the employee and returned to the employer.
A significant proportion of employment relationship problems arise in relation to the termination of employment. Either in the form of allegations of unjustified dismissal or arising from confusion about the ability to end employment in circumstances such as fixed term or casual employment. Many of these problems could be avoided if the parties involved took the time to ensure there was common understanding at the outset.
Beyond that, the employment agreement is the governing document in any employment relationship and it is imperative that it is in the correct form and contains appropriate clauses for the real nature of the relationship.
There is, for example, no point in having a one month's notice of termination clause in a casual employment agreement. It simply doesn't make sense and arguably, at worst, undermines the casual nature of the employment.
Employers will often look to their employment agreement as a basis to take action, such as suspending an employee. So it is worth taking the time to make sure the right clauses are in there. There are few things worse than finding out a clause you thought was there, just simply isn't.
Finally, if you are an employer, ensure that you have the employee sign the agreement before they commence work. Once they have started work, you have very little leverage to get that agreement signed.
That isn't a significant risk in terms of a penalty being imposed by the Employment Relations Authority, provided you can show an employment agreement was provided to the employee, but it is a risk if you want to rely on the employee's agreement to particular clauses in the future.
The bottom line is if you too have been watching too much of The Apprentice, and you're feeling "Trump-ish" and want to have your own turn at uttering those now infamous words: "you're fired" you may want to make sure that the employment agreement provides the right for you to do so.
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
