So your been fired. Is the dismissal an unfair dismissal.
What is an unfair dismissal in NZ, what rights do you have as an employee to fight an unfair dismissal. Now an unfair dismissal could be a dismissal under the 90 days, a redundancy or for alleged misconduct. Either way you need to consider if you want to obtain legal advice by using or first consultation free service to access your claim.
Below is an overview of a suggested process on redundancy and dismissals, read this to see if your dismissal in unfair. We are based in Christchurch, but can offer you some advice by phone if required.
Youtube: The process explained by Robert Thompson: youtu.be/l4mqyXXQusM
YouTube: Unfair Redundancy explained by Robert youtu.be/-O44rL8HA9s
Every employee is entitled to challenge a dismissal, this could be a dismissal for redundancy or misconduct. During this process you can be represented by a Barrister, Union, Solicitor, Employment Lawyer or Employment Advocate.
First, the employer must show that it was substantively justified in reaching its decision. (the reason why you were fired) Second, it must establish that it carried out the dismissal in a procedurally fair manner. (how it conducted itself to reach it decision, eg meetings or investigations). The employer must also ensure that any dismissal is not coerced or forced; this type of forced resignation comes under the definition of a constructive dismissal NZ uses. For a dismissal to be substantively justified a range of reasons may be relied upon. These include:
- Poor performance
- Serious misconduct
- Misconduct after warnings
- Medical grounds
- Abandonment of employment
The above reasons are the most common, but by no means an exhaustive list. Less common reasons such as incompatibility and workplace bullying also can happen.
Before an employer makes a decision as to whether there is sufficient justification to terminate an employee's employment the employer must ensure it follows a fair process. The requirements of procedural fairness are largely directed at ensuring the right decision is made. The process depends on the circumstances. For example, the process adopted in a redundancy situation (where the employee is not at fault) will be different to the process adopted where the employer has concerns about serious misconduct. However in all cases good faith is a critical component.
First, the employer must ensure that before any decision is made that will impact upon an employee's ongoing employment it conducts a full and fair investigation into the facts. As part of that investigation the employer must give the employee a full opportunity to have input into the decision. This will usually be by way of a meeting in which the employee is given the employer's initial findings and then given an opportunity to respond. In order to have an adequate opportunity to respond, the employee must be given as much information as possible. In a misconduct situation this is likely to include details of the allegations and what other witnesses have observed.
An employer must also give the employee an opportunity to be represented and advised that his or her employment is at risk.
Finally, the employer's decision should not be predetermined or biased. For example an employer can not provide you with a pre drafted letter before seeking your side of events. I R Thompson Associates strongly recommend that you are represented in any disciplinary meeting or investigation meeting, this will ensure a fair and reasonable process.
Ok, so you have been fired now what.
Unsure of what is a personal greivance?
The Employment Relations Act gives all employees the right to pursue a personal grievance if they have any of the following complaints:
- unjustifiable dismissal
- unjustifiable action which disadvantages the employee
- sexual harassment (by someone in authority or by co-workers)
- racial harassment
- duress over membership of a union or other employee organisation.
An employee has a right to raise a personal grievance case under the Employment Relations Act 2000. This must be done within 90 days of when the grievance occurred or came to his or her attention. However, the employer may consent to a personal grievance being raised after that time. If the employer doesn’t consent the employee may apply to the Employment Relations Authority to be allowed to raise the personal grievance after the 90 day period.
How to proceed?
If a problem can’t be resolved, parties can go to mediation, either through the MBIE mediation service. You can be represented during this process by a Union, Employment Lawyer or Employment Advocate during the Mediation.
If this does not resolve the problem, employers or employees can go to the Employment Relations Authority for a determination. If either party is dissatisfied with the determination of the Employment Relations Authority, the issue can be taken to the Employment Court.
The Employment Relations Authority or Court must consider the test of justification which assesses the fairness of an employer’s decision in relation to disciplinary action. For instance, before dismissing or taking action against the employee, did the employer:
- having regard to the resources available, sufficiently investigate the allegations against the employee
- raise his or her concerns with the employee
- give the employee a reasonable opportunity to respond to those concerns
- genuinely consider the employee’s explanation (if any) in relation to the allegations.
- was the employee treated with good faith.
Unfair Dismissal or not...So what is the expected Process before a dismissal?
There must be a good reason for a dismissal and the dismissal must be carried out fairly. Otherwise, the employee may have a personal grievance claim against the employer.
What is fair depends on the circumstances of each individual situation. The employment agreement must be followed if it has disciplinary process.
Employees have the right to be told what the problem is and that dismissal or other disciplinary action is a possibility. Employees must then be given an opportunity to comment on the allegations and explain their side of the story. This must be considered with an open mind before the employer decides what to do.
The employer should investigate any allegations of misconduct thoroughly. Serious misconduct does not mean instant dismissal and the employer must still follow a fair process.
If an employee is dismissed, he or she has the right to ask the employer for a written statement of the reasons for dismissal. This request can be made up to 60 days after they find out about the dismissal. The employer must provide the written statement within 14 days of such a request.
Can an employee be dismissed for sickness?
An employee has a legal entitlement to take some sick leave (for information see the chapter “Employment – Minimum Entitlements”); however, an employer is not obliged to keep a job open indefinitely for a sick employee. Before dismissal on the grounds of sickness would be justified an employer must, however, consider a number of factors. Some factors that might be relevant include:
- The terms of the employment agreement, including any provisions for sick leave and sick pay
- Whether the employee would have been employed long-term if he or she had not got sick
- The nature of the employment (for example, is it a key position?)
- The nature of the illness or injury, how long it has continued and the prospects for recovery
- How long the employee has been employed (for example, is the employee a long-standing and valued employee?)
If the employer decides to dismiss an employee because of sickness, it must be done in a way that is procedurally fair. For example, the employee should be warned that if he or she does not return to work the job will be in jeopardy.
Dismissal during a 90 trial period
Employers are able to employ new workers on a trial period of up to 90 calendar days and may dismiss them during that time. The employer does not have to provide a written statement of the reasons for dismissal if an employee is dismissed while on a trial period and the employee cannot pursue a personal grievance for unjustified dismissal during the trial period. However, the employee may pursue a personal grievance where issues such as discrimination or harassment arise. Also the employer has many obligations:
So how should an employer deal with this? Well the employer must be able to demonstrate the following:
- That any offer of employment is subject to a trial period
- The prospective employee is given a copy of the intended individual employment agreement
- Was given an opportunity to seek advice before signing
- That the employee was not been employed previously
- The employment agreement is signed before the employment starts
- That the employment agreement contains a trial period and is in writing
Can a redundancy be an unjustified dismissal? ( Further detailed information below)
An employer can make an employee redundant for genuine commercial reasons. The question of whether a redundancy constitutes an unjustified dismissal depends on the genuineness of the redundancy and whether the dismissal was carried out in a procedurally fair manner. A fair procedure would include such things as:
- consulting with the employee
- supplying relevant information.
- considering redeployment or other options
- giving adequate notice of any meeting with a right to support or representation.
Forced resignation or “constructive dismissal”
If an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work intolerable for the employee, it may be a forced resignation often known as a "constructive dismissal".
A constructive dismissal may be where, for example, one or more of the following occurs:
- The employer has followed a course of conduct deliberately aimed at coercing the employee to resign
- The employee is told to choose between resigning or being dismissed
- There has been a breach of duty by the employer (i.e. a breach of the agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.
- If an employee has been forced to resign, they may have a personal grievance case.
In all circumstances you should call us first Robert Thompson is Christchurch’s leading employment law advocate. Call us first for your free consultation.
Redundancy is a situation where an employer terminates an employee due to the fact that the position filled by that employee is no longer required to the needs of the employer. It is the position itself that is redundant and the decision to make a position redundant should have nothing to do with the particular employee or the employee’s performance.
A redundancy can occur for financial reasons, where the employer is having financial difficulty and it is necessary to keep their costs down.
These changes will need to be because of genuine changes to the company's operations. When an employee's job is terminated by way of redundancy it should not be a reflection on that person's ability to do the job or for other personal reasons.
Employers and employees must act in good faith towards each other in all situations, including redundancy situations.
To ensure that a redundancy is genuine and fair, there are two issues to look at:
- The reasons for the redundancy (substantive justification)
- The procedure used to carry out the redundancy (procedural fairness)
The Employment Relations Act 2000 requires employers who are proposing redundancies to consult with their employees concerned. The employer must give the employees access to relevant information and an opportunity to comment on that information before the final decision on the redundancy proposal is made.
If the employment agreement contains a process to be followed in redundancy situations, then the employer must follow this process. In most cases here is a step by step guide, in all cases specialist advice should be sought before enacting.
Please call Robert Thompson. Alternatively if you are an employee and feel that you have been unfairly made redundant and this process has not been applied call us.
- The employer must be able to clearly identify the rationale behind the restructuring. This must be a genuine business reason and nothing to do with the employee (s) or their performance. If more than one employee is competing for the same role, then it may be necessary to involve a number of employees in the restructuring process. Specialist advice should be sought in relation to this otherwise any dismissal maybe seen as an unjustified redundancy.
- Arrange a meeting with the employee. The employer should draft a letter to the employee setting a time and place to meet. The employee should be advised that the purpose of the meeting is to allow them to seek clarification, and provide their feedback in relation to the proposed restructuring. The letter should outline in detail, the reasoning behind the proposed restructuring, and give full details of the proposed restructuring that is to occur. The letter must make it clear that no decision has been made, but that the employer is proposing changes which will affect the employee’s employment, and that the employee is entitled to have a representative or support person present at the meeting. The employee should be given at least 48 hours notice of the meeting, and advised that they require further information, however all relevant information should be provided to the employee in the first instance. The failure to provide information could be viewed as unfair and allow the employee to raise a personal grievance.
- At the meeting, the employer should ensure the employee fully understands the proposed restructuring and possible effect it would have on the employee’s employment. The employer should not make any comment which indicates a decision has been made regarding any new structure or any changes to the employee’s position. The employee should then be given an opportunity to provide their feedback in relation to the proposal.
- If more than one employee is involved in the process, there should also be some discussion regarding a fair selection criteria to determine which employees are made redundant; again seek specialist advice in such circumstances should be sought to avoid an unfair redundancy claim.
- Once the employees have provided their feedback, the meeting should be adjourned for the employer to consider the feedback provided (if any).
- Once the consultation process has been completed, the employer is in a position to make and communicate a decision in relation to the proposed restructuring. This should be confirmed in writing.
- If more than one employee is involved in the process, an additional step would need to be made at this point in applying the selection criteria; again call us.
The Courts have also held that an employer is entitled to make decisions to reorganize their operations where employees are made redundant. However, employers must meet the requirements of procedural fairness. A reasonable employer cannot be expected to surrender the right to organize his or her own business, so an employer can make changes to their business but must follow a fair and reasonable process.
A fair process could also include aspects such as:
- Plenty of notice about any redundancy proposal
- An open minded approach to alternatives to redundancy, such as redeployment
- Counselling and career advice
Compensation for being made redundant is generally not a legal requirement, but it can be negotiated between the two parties. Some employees (who do certain catering, cleaning, caretaking, laundry or orderly work) can ask the Employment Relations Authority to decide what redundancy entitlements they should receive when their employment agreements do not cover redundancy entitlements in restructuring situations.
If an employee believes that they were made redundant for reasons that were not genuine or that the redundancy process was unfair, they can challenge it by raising a personal grievance for an unfair dismissal claiming that the redundancy was unjustified.
So I have a claim, why should I use an IRT over a large firm with a team of Employment Lawyers.
The answer is simple, this is what we do, we only live and breathe employment law. We represent employers, over 500 New Zealand wide and we have represented thousands of employees obtaining significant results for them. Each large law firm has many Partners to feed and a large staff to pay with big over heads. So normally there costs are out of proportion with any award you may receive.
Remember you need to have confidence and trust in your employment lawyer or employment advocate, so ask for testimonials or cases that they have won. Call us today and we will provide you with the answers that you need along with a free consultation.
This information is not a substitute for legal advice and we recommend that you visit or call before acting on material you have read. We can help you with you unfair dismissal or unlawful action.