All in a day's work: Discrimination discrepancy?

Andy Haden. Photo / Hawkes Bay Today

My grandmother used to say to me before I went out - have a good time and don't do anything I wouldn't want to read about on the front page of the Herald tomorrow...Of course, I always complied!

Now sometimes, we can do things we regret, and sometimes those things can result in negative publicity. Equally, some things seem to slip under the radar. Serving as a good reminder, that we can't control the news...

How is this relevant to employment law, I hear you ask? Well, in a number of ways.

Last week a number of media outlets, including the NZ Herald ran with stories about Andy Haden's comments about the Crusaders rugby franchise having an alleged race based selection policy of only hiring a certain number of "darkies" .

I contemplated a blog about whether an employer can have such a policy, before deciding that most people are familiar with employers' obligations in respect of hiring practices. The bottom line being that an employer cannot discriminate on the basis of any of the prohibited grounds of discrimination, as set out in the Human Rights Act 1993, unless it is covered by one of the limited exceptions in relation to employment matters.

An employer is entitled to select an applicant based on their suitability to perform the intended role, but cannot refuse to hire or promote someone, based on one of the prohibited grounds (sex, age, or in this case, race).

What is also interesting is that another discrimination case this week has slipped comparatively under the radar.

The Employment Relations Authority recently awarded more than $19,000 (some of which was taxable) to a North Shore landscape gardener who was made redundant because she was pregnant. The employee, Janene Parlane, became pregnant in August 2008. She told her employer, Ron Dykman Ltd, in October 2008 and it was agreed that she would avoid heavy lifting and chemical spraying.

She was due to take maternity leave in May 2009 and would have been eligible for paid parental leave pursuant to the Parental Leave and Employment Protection Act 1987. I say 'would have', because she ultimately was not, following the company's decision to dismiss her in January 2009.

This arose following an initial suggestion by the company that Ms Parlane consider resigning because the company was finding it difficult finding light work for her to do.

The Authority held that the company failed to consult adequately with Ms Parlane, but more significantly, did not have a substantively justified reason to dismiss her. It dismissed her as it regarded her as an inconvenience because she could not perform her full range of duties due to her pregnancy.

The Authority awarded Ms Parlane reimbursement of 14 weeks' gross wages as lost wages ($10,080 gross), lost paid parental leave in the sum of $5,703.32 net, as compensation for loss of a future benefit, and the relatively modest sum of $3,500 as compensation for hurt, humiliation and distress.

In the scheme of things, which is worse: dismissing an employee who is pregnant and becomes an inconvenience? Or making a comment about an allegedly discriminatory recruitment practice and choosing the wrong words to do so?

Who deserved to hit the headlines more?


Bridget Smith