在新西兰
[霍律师说法]解雇员工怎样做才合法 从纽航败诉谈起
Background 背景[1] Ms Hudson was one of 480 customer service agents employed by Air New Zealand ("Air NZ") at Auckland International Airport, working with departing passengers at international gates. Her duties included checking in passengers for Air NZ as well as for customer airlines. She had been employed by Air NZ from 1995 and was dismissed in December 2004.哈德森女士是纽航雇用的480名地勤人员之一，工作地点在奥克兰国际机场，主要在机舱口为离境乘客提供服务。她的工作还包括为纽航以及和纽航有合作关系的其它航空公司办理登机手续。她从1995年起受雇纽航，2004年12月被解雇。[2] Following a written warning in 2002 (relating to three separate passenger complaints) and a final written warning in 2003 (regarding a breach of security), three new complaints reached Air NZ concerning Ms Hudson in November 2004. Subsequent to a series of meetings, with a mixture of support persons and representatives for Ms Hudson, Air NZ dismissed her for "serious misconduct and repeated serious breaches of her obligations towards customers". 2002年，纽航给了她一份书面警告（与三起客户投诉有关）。2003年，纽航出示最后一份书面警告（与违反安检条例有关）。2004年11月，纽航又收到另外三份对哈德森女士的投诉。在经过了一系列会谈之后──会谈过程中哈德森均有代理人或相助人士出席──纽航做出解雇哈德森的决定，理由是她“严重渎职和屡次失职”。[3] The Employment Relations Authority found that the dismissal was flawed procedurally, and that there was no serious misconduct. The Authority ordered reimbursement of wages, payment of compensation and reinstatement. Air NZ challenged the determination.雇用关系署认为纽航解雇哈德森存在程序性瑕疵并且哈德森女士并无严重渎职。雇用关系署裁定纽航补偿工资、赔偿损失并恢复哈德森女士工作。纽航对此决定提出挑战。The Employment Court 雇用法庭[4] The Employment Court ("the Court") was required to decide whether Air NZ's investigation and its decision to dismiss Hudson following that investigation were justifiable. In doing so, the Court analysed the impact of the new test in s103A of the Employment Relations Act 2000 ("ERA"). 雇用法庭（简称“法庭”）需要解决的问题是，纽航对哈德森事件的调查以及调查之后做出的解雇决定是否合法。解决这个问题，需要分析《雇用关系法2000》（简称《雇用法》）103A条有什么样的影响。 Test of justification: s103A:合法性测试标准：第103A条[5] Section 103A, inserted by the Employment Relations Amendment Act (No 2) 2004, provides that "[…] the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred."《雇用关系修正法（第2）2004》增补第103A条：“[ …]关于解雇或其它行为是否合法的问题，需要在客观基础上，考量该雇主的行为以及该行为的实施，是否为一个公道、合理的雇主在所有相关情形下。在解雇和其它行为过程中，所愿意采取的一切行动。”[6] The Court held that in order to decided whether the employer's actions were what a fair and reasonable employer would have done in all the circumstances, as required by s103A, the Court must judge all of the circumstances objectively. 法庭裁定，为了判定雇主的行为是不是一个公道、合理的雇主在所有相关情形下，依103A条款的要求而履行所有步骤，法庭需要从客观角度来判定。"Could" or "Would"“可以”或“愿意”[7] A distinguishing feature of the new test under s103A is the difference between "could" and "would". The judge gave, as an illustration, the example of an employee caught stealing a large amount of money, whom a fair and reasonable employer could and would dismiss with justification. However, where an employee negligently makes an accounting error, the employer could dismiss but whether a fair and reasonable employer would dismiss is a matter for evaluation in all the circumstances. In other words, employers should ask themselves the question: what would a neutral observer view as being fair and reasonable.103A条所规定合法化测试标准，其最大特点在于“可以”和“愿意”之间的区别。庭审法官举例说明这两者的不同。譬妨说，一个职员盗取大笔公款被当堂抓获，一个公道而合理的雇主“可以”并且“愿意”合法地将其解雇。但是，如果一个职员回过失而错帐，雇主当然可以将其解雇，但是一个公道、合理的雇主是否“愿意”将其解雇则要视不同情形而定。换句话说，雇主应该给自己提一个问题：从一个中性的旁观者角度判断，究竟怎样做是公道而合理，怎样做不是公道而合理呢？Procedure flawed程序性瑕疵[8] The Court found that Air NZ's procedure was seriously flawed. The first flaw was its failure to interview an important witness, who had relevant information about the most serious incident concerning Ms Hudson. The second flaw was that Ms Hudson's representative in the first two meetings was not free to speak on her behalf. And the third flaw was that at least two of the complaints were performance issues not misconduct ones and should not have been considered with the alleged serious misconduct.法庭认为纽航处理哈德森问题时程序上存在严重瑕疵。第一个瑕庛是纽航调查时没有向一位重要证人了解情况，而该证人掌握有关哈德森最严重的一次事件的相关信息。第二个瑕庛是哈德森女士的代表在最初两次会谈中，不能自由代表哈德森说话。第三个瑕庛是至少有两桩投诉涉及到哈德森女士的工作表现而非渎职行为，因此一开始就不能够和渎职嫌疑相提并论。Decision裁决[9] The Court concluded that objectively viewed, the investigation was not conducted in a way that a fair and reasonable employer would have conducted it. It followed that Air NZ's decision to dismiss Ms Hudson was unjustified. 法庭认为，从客观立场判定，纽航的调查 [其内容和程序] 不是一个公道合理的雇主愿意做出的调查。因此，纽航对哈德森所做出的解雇决定是不合法的。[10] When considering appropriate remedies, the Court discussed the employee's contribution to the situation. "Her previous history and the impracticability of her continuing employment as a normally rostered customer service agent would have justified Air NZ's decision to dismiss her". Therefore, a remedy of reinstatement was not appropriate or practicable. Accordingly, the sum of $5,000 was awarded under s123(c)(i) ERA to compensate her for the inadequate investigation process, but not for unjustified dismissal because a fair process might well have resulted in a justified dismissal.但是在审核纠补问题时，法庭也考虑到哈德森的过失因素。“她的过往纪录，以及她不可能以一个正常轮班的地勤人员继续受雇的现实，综合考量，纽航将其解雇的决定是合理的”。因此，恢复工作的裁定不当且不现实。法庭依123（c）（i）款，判纽航给付哈德森$5000作为程序性不当之赔偿，但并不是赔偿她被解雇，因为一个正当的程序，就能够使解雇决定完全合法。Effect of the decision此案之影响[11] The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in that case. Employers now, more than ever, need to be carefully when making decisions and conducting dismissal investigations against an employee. They must consider not what a fair and reasonable employer could do in the circumstance but what, objectively, a fair and reasonable employer would do.关于解雇或其它行为是不否合法的问题，要从客观基础上综合考量。具体说来，要考量雇主的行为以及行为的实施方式，是不是一个公道而合理的雇主在当下愿意实施并且按既定的方式实施。当决定解雇一个员工并实施调查时，现在的雇主要比任何时候都要小心谨慎。雇主需要考虑的不光是在那种情形下一个公道而合理的雇主“可以”怎么做，而是在一个客观考查的基础上，一个公道而合理的雇主“愿意”怎样做。Air NZ Ltd v Hudson 30/5/06, Shaw J, AC30/06“纽航诉哈德森案”06年5月30日，法官Shaw J, 编号AC 30/06。 DISCLAIMER: THE CONTENTS OF THIS PUBLICATION ARE GENERAL IN NATURE AND ARE NOT INTENDED TO SERVE AS A SUBSTITUTE FOR LEGAL ADVICE ON A SPECIFIC MATTER. IN THE ABSENCE OF SUCH ADVICE NO RESPONSIBILITY IS ACCEPTED BY THE AUTHOR(S) FOR RELIANCE ON ANY OF THE INFORMATION PROVIDED IN THIS PUBLICATION. 免责声明﹕本文仅就有关法律问题进行一般性评价﹐不可做专项法律行为之依据。本文作/译者拥有版权﹐但并不因此负担任何其它法律责任。