Zhang v GL Futures Development Limited

Multiculturalism brings with it many different things including different approaches to employment and employee rights. With the increasing ethnic diversity in our employers we are seeing an increasing number of cases in the Employment Relations Authority where the employers lack understanding of employee rights in this country. This is one such case and it is a tidy reminder of some of the basic rights employees have here.

GL Futures operates an online gaming business in Asian markets and has a customer call centre in Auckland, employing 25 staff, with the parent company being in Hong Kong. Ms Zhang was a customer centre operator. (We tend to think of call centres being outsourced to other countries, not outsourced from other countries to New Zealand.)

One day Ms Zhang, her supervisor and another staff member took 45 minutes for their meal break instead to the permitted 30 minutes. A colleague complained and the following day each of the trio were called to a meeting. The other two both admitted they were back late and apologised. The colleague was issued with a first warning and disqualified from the company’s bonus scheme for 3 months, while the supervisor was given a written warning and disqualified from the scheme for 6 months.

Ms Zhang was accused both of being late back from lunch and hanging up on customers. Zhang admitted the actions and said that sometimes she and other staff hung up on calls. During the discussion Zhang did what most Kiwi’s would do, and asked for clarification of some issues. As a consequence, the managers looked more closely into Zhang’s performance and she was called to another meeting.

At the second meeting Zhang said she did not intentionally exceed her break and she would pay more attention to how she handled calls in future. This was followed, on the prompting of the NZ based manager, with a written admission and apology. This situation was discussed with the company director and his assistant (mysteriously known as 003) in Hong Kong and it was concluded that they had lost trust and confidence in her and decided to dismiss her. The company justified its action by saying that she ‘made no admissions until she was presented with overwhelming evidence and even then was unapologetic for her actions’. During this time Zhang was experiencing medical problems that required hospital treatment.

The test for whether the dismissal was justified is “what a fair and reasonable employer could have done in all the circumstances at the time”. This lifts the perspective from what the particular employer considers to be fair and reasonable, to what an objective New Zealand observer would consider fair and reasonable. An objective New Zealand observer may well have a different perspective than an objective observer in Hong Kong.

The starting point was whether Ms Zhang was treated in the same way or differently from other staff who had broken the same rules. Ms Zhang suffered a harsher penalty, even though one of her co-offenders was more senior.

The Authority found the process followed was subject to multiple failures, particularly as Ms Zhang was not advised of the possible consequences of the investigations and did not have the opportunity to get advice before attending the meetings that ultimately resulted in the decision to dismiss her. In addition she should have been provided with the actual information the managers gathered in their investigation including the recordings of the phone calls, but instead was provided with a summary of their findings.

It is a fundamental right for an employee facing sanction to speak to the person making the decision directly. In this case, the decision was made by managers in Hong Kong, after discussion with the New Zealand based managers. At no point did Ms Zhang have the opportunity to put her case to the decision makers.

Taking into account all the circumstances, the Authority concluded that Ms Zhang’s behaviour did not amount to serious misconduct and therefore dismissal was not a sanction available to the employer. The penalty must fit the crime, and this did not.

The employer was found to have unjustifiably dismissed Ms Zhang and she was awarded around $18,000 in lost wages and hurt and humiliation, which was discounted by 10 percent for contribution on her part.

A final interesting aspect to the investigation is that it was conducted in Mandarin and the Authority member had to work through an interpreter which must have made the process more complex for everyone.

Anne Aitken, HR Professional, anne@anneaitken.co.nz