Unfair Dismissal and Personal Grievances

Just been sacked, wrongfully dismissed, unjustifiably dismissed or "let go"

 

It does not matter what you call it,  if your employer has not followed the correct procedure or did not have a genuine reason for your dismissal, under New Zealand employment law, you may have a personal grievance claim.

employment problem.jpgIf you have just been unjustifiably dismissed you are not alone.  Employee dismissals occur every day in New Zealand.  The good news is that over 70% of personal grievance claims are resolved at mediation through the Department of Labour.

The Employment Relations Act 2000 gives all employees the right to pursue a personal grievance if they have any of the following complaints:

 

How to write a Personal Grievance Letter


We have worked in employment law since 1997.   Over that time we have fine tuned the questions an employment representative or consultant needs to ask you to work out whether you have a personal grievance claim for unjustified dismissal and can give your a free preliminary opinion.  You can see the questions by going to our Personal Grievance Questionnaire. (Requires free registration)

If you want a free, no obligation, preliminary opinion on your dismissal submit the questionnaire and and we will provide you with a comprehensive written response.



Unjustified (Wrongful) dismissal

“Dismissal” simply means termination of employment by the employer. While dismissal can be a disciplinary step, it does not have to be (e.g. dismissal might be for redundancy or for health reasons).

Process

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. Any relevant provisions in the employment agreement must be followed. If an employment agreement does not have a notice period, then reasonable notice must be given.

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 a genuine opportunity to tell their side of the story before the employer decides what to do.

The employer should investigate any allegations of misconduct thoroughly and without prejudice. Unless there has been misconduct so serious that it warrants instant dismissal, the employee should be given clear standards to aim for and a genuine opportunity to improve.

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. If the employer fails to provide this written statement, the employee may consequently be able to raise a grievance after the required 90 day limitation period.

Dismissal during a 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.


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.

Unjustifiable action resulting in disadvantage

Employees may have a personal grievance if an employer does anything unjustifiable which disadvantages an employee in the job or work conditions.

Discrimination

An employee will have a personal grievance based on discrimination if an employer or an employer's representative discriminates because of the employees:

  • colour
  • race
  • ethnic or national origins
  • sex (including pregnancy or childbirth status)
  • marital or family status
  • age
  • disability
  • religious or ethical belief
  • political opinion
  • employment status
  • sexual orientation
  • involvement in union activities, which includes claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.

These grounds (apart from the last) are the same as the grounds in the Human Rights Act. In some circumstances, different treatment of employees on these grounds is acceptable. These circumstances are set out in the Human Rights Act.

Discrimination for the above reasons can involve:

  • refusal or failure to offer an employee the same terms of employment, conditions of work, fringe benefits, opportunities for training, promotion or transfer as other employees with the same or similar qualifications, experience or skills working in the same or similar circumstances.
  • dismissal or detriment by the employer or employer's representative in circumstances in which other employees doing the same kind of work are not, or would not be, treated in such a way.
  • retirement or being made to retire or resign by the employer.

Sexual harassment by a person in authority

An employee may have a grievance of sexual harassment against his or her employer if his or her employer or supervisor or a person with authority in the workplace:

  • directly or indirectly asks the employee for sex or some form of sexual activity, either promising preferential treatment in the job or threatening worse treatment or dismissal, or
  • directly or indirectly subjects the employee to unwelcome or offensive behaviour through words, visual material or physical behaviour of a sexual nature, and this behaviour is of such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

A personal grievance can be taken even if the promises or threats were suggested rather than stated openly. Similarly, the employee does not have to say that certain behaviour is unwelcome or offensive when it happens in order to be able to pursue a grievance.

Racial harassment by a person in authority

An employee may have a grievance of racial harassment against his or her employer if the employer or supervisor or a person with authority in the workplace:

  • directly or indirectly shows hostility, ridicule or contempt based on the employee's race, colour or ethnic or national origins through language, visual material or physical behaviour that the employee finds hurtful or offensive; and
  • this behaviour is of a such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

The employee does not have to say that the behaviour is hurtful or offensive when it happens in order to be able to pursue a grievance.

Sexual or racial harassment by co-workers or customers

An employee who is sexually or racially harassed in any of the above ways by any co-worker, or by a customer or client, may complain to the employer.

The employer must then look into the facts. If reasonably satisfied that the complaint is genuine, the employer must take whatever steps he or she can to stop the harassment happening again. This may, for example, involve restricting the access of the customer or client to certain parts of the workplace.

If the harassment happens again after the employee complains and the employer still has not taken all practicable steps to prevent the harassment, the employee will have a grievance against the employer.

Duress over membership of unions or employee organisations

In some situations, employees could be subjected to duress by their employer because of their membership or non-membership of a union or an employees' organisation.

Duress can occur when an employer or an employer's representative

  • says that an employee must belong (or must not belong) to a union or an employees' organisation (e.g. a staff association) if they wish to keep their job, or
  • uses undue influence, offers or does not offer some incentive or advantage, or threatens to disadvantage the employee, in order to get an employee to leave or join a union or an employees' organisation or a proposed one, or
  • uses undue influence, offers some incentive or advantage or threatens to disadvantage an employee to try and stop the employee from acting on behalf of other employees.

Personal Grievance Claims


Pursuing a personal grievance for an unjustified dismissal, unjustified action/disadvantage, discrimination, sexual harassment, racial harassment, or for duress over membership of an employee organisation is  often associated with a difficult and challenging time.  It is hard for some one who has just been sacked to think clearly.  Getting a highly experienced employment representative or employment lawyer who understands employment law to help you with your claim will always pay off in the end.

Disclaimer & Acknowledgement

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These guidelines provide general information and guidance. The Employment Relations Centre does not accept any responsibility or liability, whether in contract, equity or tort, or under any other legal principle, for any direct or indirect losses or damage of any kind arising from the use of this guide. This includes any action taken as a result of reliance on any part or all of, the information in this guide. It is also noted that:
1. The Employment Relations Centre may change, add to, delete from, or otherwise amend the content of these guidelines without notice.
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