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Good workplaces neither burn out nor bore

11 May 2014

Aggrieved workers often complain about being overworked and "burnt out".

Workers also complain, although less often, of "being sent to coventry", of having no work or trivial work.

Frenchman Frederick Desnard has captured the attention of world media this month by bringing a case against employer, Interparfum, because he suffered from "bore out" while employed.

He claimed that he was mise en placard from 2010 to 2014 a French phrase to mean that he was given little or no work (but literally interpreted as being "put in a cupboard").

Desnard complained that his managerial job at the perfume company was so tedious that he became exhausted and bored out of his mind. He said his "descent into hell" was similar to burn out, but less interesting. He claimed that his boredom led him to suffer epilepsy, ulcers, sleeping problems and serious depression.

Desnard is seeking over half a million New Zealand dollars to compensate him for what he went through.

Readers may think this smells a bit funny, but claims on similar grounds as Desnard's are not unheard of in New Zealand.

Noel Hanlon in 1994 took a case against the Japanese University in Palmerston North, International Pacific College.

He claimed the College applied an objectionable Japanese management technique upon him known as "madogiwa-zoku". Loosely translated these words mean "window people"

The expression refers to people in an organisation removed from active duty and without work, but cannot be dismissed because of the lifetime employment regime in Japan. They are usually senior people and are ironically given desks in the most sought after position - beside the window.

Hanlon claimed that he was stripped of any decision making authority and excluded from other roles which were within his province. He claimed constructive dismissal, and although the case came before the Employment Court, it was merely on a procedural point and it appears the dispute was settled out of Court.

However an earlier case does give some answers.

Bruce Northey was a successful in-house lawyer and was well regarded by his employers. He gained employment with BTR Nylex under the impression that he would have great career prospects with them.

However early into his employment he discovered he was getting too little work. By his own estimates, he thought he worked 10 hours a week in his role.

Despite this, his employer was seemingly happy to keep him around. BTR gave no indication that they would be making him redundant any time soon, and continued to pay Northey his executive sized remuneration package.

Northey resigned and claimed constructive dismissal, but his case failed before the Employment Tribunal. The Tribunal found that there was no evidence to show that the lack of work was part of a deliberate strategy to put pressure on Northey to leave.

The Employment Tribunal considered the words of the famous English jurist Lord Denning, who gave an old fashioned view.

"It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wage regularly, she cannot complain if I choose to take any or all of my meals out".

Although Lord Denning wisely observed that in modern times the "servant has a right to have the opportunity of doing his work whenever it is there to be done".

The Employment Tribunal noted that while some might like enforced idleness, for many including Northey, lack of work means lack of satisfaction, development and experience. Despite this, the employer was not a "guarantor of the attainment of these personal ideals or preferences".

Perhaps these days the decision would be different. The right to work has been more firmly applied by the Courts recently, most particularly in cases of suspension.

Accordingly the high rise buildings of Wellington will not see rows of aged, phased out executives sitting by the windows, on pay, doing nothing. Enlightened workplaces neither burn out nor bore out their workers

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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