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Sensitive Employees

5 September 2016


Nearly all employers must deal with sensitive employees at one time or another and it is important that they know how to approach such situations.

A young Auckland man recently won his case in the Employment Relations Authority after being fired for being too young and having Asperger’s syndrome. Lichen Wang, 21 years old, was employed as a warehouse worker. His hours of employment were 10:00am-6:30pm, 6 days a week, and he was paid just $90 per day. After one week his employer, Mr Guan, told him he was not a suitable employee, but after discussions he was given another opportunity to improve his efficiency.

Four weeks into the job, Mr Wang’s personal items were stolen from the kitchen where he had been advised to leave them. This included his mobile phone, his wallet, and his car keys. As a result, Mr Wang was extremely distressed. He said that his boss gave him two days off work because of his distress and in order to replace his missing items. When he returned to work he was told his employment has been terminated as they required someone older and more stable. The employer argued that Wang was never told to take 2 days off and that by not turning up to work Wang had quit his job.

An investigation meeting was held and Mr Guan stated that his reasons for dismissing Mr Wang were his poor performance, the temporary nature of his employment, his reaction to the loss of his personal property, and his belief that Mr Wang was receiving a WINZ benefit.

The Authority determined that Mr Wang’s $90 per day salary did not comply with the Minimum Wages Act and the employer was ordered to pay the shortfall according to the minimum wage. It was also decided that Mr Wang was a permanent and not a temporary employee. Additionally, because no written employment agreement was given to Mr Wang, the employer could not invoke a valid trial period as it was not in writing. Mr Wang was both unjustifiably dismissed and discriminated against on the grounds of age and disability and accordingly was awarded $5,000 for hurt and humiliation.

Similarly, the Human Rights Review Tribunal recently heard the case of Mr McClelland, a Schindler Lifts NZ Ltd technician with a hand tremor who was dismissed within his 90 day trial period. Whilst carrying out lift maintenance with another technician, Mr McClelland failed to observe safety procedures and this was reported, along with his noticeable tremor. After attending a meeting, Mr McClelland was fired.

Because of the additional factor of failing to adhere to safety standards, the Tribunal considered whether Mr McClellan’s employment was terminated “by reason of” his hand tremor and held that the prohibited ground of discrimination only need be “a material ingredient” in the decision to terminate, not a substantial or operative factor. The Tribunal compared Mr McClelland’s treatment with that of other Schindler service technicians who did not have a tremor and found that others were not dismissed. Upon the Tribunal’s conclusion that Schindler had unlawfully discriminated against Mr McClelland and he could have performed his duties without an unreasonable risk of harm, it awarded him $3,713 in compensation for lost wages and $25,000 in compensation for humiliation, loss of dignity and injury to feelings.

For employers to act appropriately in the future with regard to sensitive employees it is important that they are aware of the relevant provisions. The Human Rights Act prohibits discrimination because of sex, marital status, religion, ethical belief, colour, race, ethnicity, disability, age, political opinion, family status, or sexual orientation. The Act specifically provides for employment situations, stating that where the individual is qualified for work, employers cannot refuse to employ, offer less favourable terms of employment, terminate or retire the employee because of a prohibited ground of discrimination.

The best approach for employers is to treat sensitive employees the same as other employees so far as possible. The Human Rights Act does allow for some differential treatment so long as it is done in good faith to assist or advance persons who fall into one of the stated categories.

The Act also imposes a duty on the employer to reasonably accommodate an employee with a disability by providing special services or facilities to enable the employee to perform their duties position satisfactorily. Depending on the individual’s disability, special services or facilities may include: special travel arrangements to and from the place of work (including the provision of a guide or hearing assistance dog); wheelchair or disabled persons’ access to, from, or around the place of work; appropriate toilet facilities; specially designed chairs, desks, or work stations; a secretary, reader, or caregiver; an assistant or interpreter; a palliative or therapeutic device; or an auxiliary aid.

The individual must first possess the relevant academic or other technical qualifications for the position as an employer is not required to lower its standards. The Act merely ensures that an otherwise qualified disabled person is not denied employment solely because of the disability. If it is unreasonable to expect the employer to provide the service and facilities required, usually because it would cause undue hardship for the employer, or the duties could only be performed with an unreasonable risk of harm to that person or others, the Act permits the employer to treat the individual differently to others.

Experts suggest that tricky situations can be avoided by getting to know your highly sensitive employee better and understanding what drives them and what keeps them calm and productive. Learn the employee’s strengths and where possible provide opportunities that will allow their strengths to be utilised. Understand the sensitive employee’s triggers by asking them what makes them feel overwhelmed and try to minimise these factors.

Being aware of the differences of individuals and making allowances when helpful, as allowed by the Human Rights Act, are essential to a workplace operating harmoniously and efficiently. Although achieving a balance may be difficult, creating a positive environment for different personalities is well worth it in the long run.

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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