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Employment law’s contribution to deceit

  • September 22nd, 2008


Recently I caught part of an employment law seminar.  A roomful of anxious looking people earnestly absorbing a refresher on proper process.

Though I suspect few of them thought hard about it, essentially it is an ‘update’ on how to manufacture evidence.  Things like:

  • How to create a self serving record of consideration of an employee’s request for flexible working hours?
  • What will show you have ‘not decided’ on your plan before you go into consultation?
  • How to tweak your language for a reasonable chance of fending off a tactical (or substantive) lawyer challenge to a restructuring plan?

The decent mainly young execs all around me showed no signs of contempt or irritation. I doubt whether it crossed the minds of any of them to wonder why they were being schooled in faking sincerity whether they felt it or not. Pretence demanded by law is just part of their mental furniture. Many of them have grown up in a world where the law is much more concerned about process than truth or the substance. To them the law is just another facet of a world of falsehood of various degrees.

I suspect if I’d shouted out, the seminar would have found reasons to feel OK. Why should the manufacture of evidence be any worse than polite social lies? Both seem necessary for ordinary people to get by, to do ordinary reasonable things with minimum friction.

I hate what has happened to the youth ideals of my generation, when sincerity was the virtue that trumped all others (even tolerance and certainly politeness). That generation in power has created a body of law for liars that would stun the parents we were out to shock. It rewards routine lying. Indeed it may be virtually impossible for businesses to function if they do not play the game.

I was reminded of W Peters feigned outrage before the Privileges Committee at what he considered to be Owen Glenn’s "coached evidence". I think they call it "projection".

No wonder W Peters thinks its worth spouting nonsense and H Clark can pretend she can’t act on anything less than a formal outcome of proceedings. Employment law steers people straight to lying, by forcing them to pretend they act in ways no sensible person would act, and indeed in ways no self respecting employee would want them to act.

Employment law schools New Zealanders in false pretences, in pretending that people do not and should not act on their sound intuitions. Good managers and good employees know that often one must act on imperfect information, that acting with the risk of being wrong is better than dithering.

Employment law instead schools people not to see and know or act on truth in front of them.

The focus on process is a legal plague invented to authorise lawyers (and judges) to reopen any decision they want, to punish intuitive common sense. That culture plays into the hands of the Peters and the  H Clarks of our little world.



There are cases now where judges are explicitly stating that a dismissal or other action was justified in substance, but still awarding damages because the proper process was not followed.

It’s nonsense because the sole purpose of process is to enable a substantially correct decision to be reached.

  • mike mckee
  • September 23rd, 2008
  • 7:00 pm

I think the old language for this process was called “Lying”.
It says all it needs to about the perpetrator and their company.

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