Employment law problem?

You’ll want to know what your rights and obligations are so you can move forward knowing where you stand…

Personal Grievance

A personal grievance is an employee’s claim that the employer has not acted fairly and reasonably in their treatment of the employee. It covers an unjustified dismissal as well as an unjustified disadvantage. You will want to know how to raise a personal grievance correctly with your employer (what you need to say and ask for) and when you must raise the grievance (90-day time limit or 12 months if sexual harassment). An employer will need to know how to respond to a grievance raised and what a good personal grievance process is. This will initially be by discussion and correspondence, then potentially a mediation, and very occasionally a claim to the Employment Relations Authority.

Unjustified Dismissal

An unjustified dismissal is a claim that an employee’s dismissal is not what a fair and reasonable employer could have done and is therefore unjustified. It is an unfair dismissal. It is important to get the dismissal process right. You will need to know what remedies to seek such as reinstatement, lost wages, compensation, penalties, and costs, or how to respond to such a grievance. This could initially be in writing, by discussion, at a mediation, or in the Employment Relations Authority.

An instant dismissal is where the employee is dismissed without being paid their notice period. It does not mean the dismissal is carried out instantly. A proper disciplinary process must still be followed before deciding on an instant dismissal.

A constructive dismissal is where the employee has resigned, but the resignation is in some improper way the result of the employer’s actions eg saying that the employee should resign or they will be fired. 

Unjustified Disadvantage

This is a claim that the employee has been disadvantaged by their employer’s treatment of them, and that is contrary to their employment agreement or the law. That is, it is unreasonable or unfair and not what a reasonable employer could have done. 

Handling a Performance Process

An employer should:

  • Advise what any shortcomings are.
  • Outline the required standards
  • Decide if further training or resources are needed.
  • Provide that training or resources.
  • Monitor performance and give feedback to help improve performance.

See our full guide: Performance Process

Handling a Disciplinary Process

If there are issues with an employee’s conduct then it might be necessary to put in place a disciplinary investigation.  A proper disciplinary process must be followed including holding a disciplinary meeting, getting feedback and reaching a decision after the disciplinary hearing.

A proper disciplinary procedure should include the following steps:

  • Consider the allegations and collect evidence.
  • Advise the employee of the allegations.
  • Consider suspension.
  • Seek feedback on suspension.
  • Get responses to the allegations.
  • Decide what happened. Are the allegations proved?
  • Advise findings on allegations.
  • Get feedback on potential penalties- warnings, dismissal.
  • Advise outcome.

See our full guide: Disciplinary Process

Long Term Sickness

Dealing with staff suffering from a long term sickness can be very stressful for all involved. It is important to follow any long term sickness policy or clauses in the employment agreement. This will involve a meeting to discuss the impacts of the long term sickness on the employee and other staff. You will need to obtain and rely on medical reports into the employee’s physical or mental capacity to carry out their employment tasks. If they are not able to work and have used up their sick leave, then this might result in their medical retirement or dismissal for medical incapacity.

Dealing with Long Term Sickness

What does the employment agreement provide?

  • Get Medical reports on ability to return to work.
  • Consider how long you can carry the employee once their sick leave is exhausted.
  • Meet and discuss the issue with the employee.
  • Advise of potential medical retirement.
  • Get employee’s feedback.
  • Decide on the outcome.
  • Advise the employee of the outcome.

See our full guide: Handling Long Term Sickness

Handling a Redundancy Process

It is important to follow a proper process when deciding on any redundancies.

In general, an employer should:

  • Decide on the restructure proposal.
  • Advise the impacted employees of the proposal.
  • Seek their feedback.
  • Consider the feedback received.
  • Decide on the outcome of the proposal.
  • Advise the impacted employees.
  • Consider redeployment options.
  • Go through any selection process.
  • Advise of any redundancies.
  • Advise of any redundancy pay.

See our full guide: Redundancy Process

We are lawyers with many years’ experience in employment law and helping people like you get the best result…

We can help you with writing any necessary letters, guiding you through a discipline or performance process, raising or responding to redundancy or long term sickness issues or appearing with you at a mediation or in the ERA.

Employment Agreements

We can also draft or review employment agreements (permanent, fixed term, casual or part time) as well as contractor agreements, and give you guidance on whether you should be using an employment agreement or a contractor agreement. Getting that wrong can have very serious consequences.

Every employee must have a written employment agreement. Employers can be fined for failing to supply a written agreement, and many terms, such as 90-day trial periods, will be invalid if they are not in writing.

The agreement should be signed by both parties before the employee commences work.

Ensure you keep a copy of all employment agreements. You must also keep copies of any draft agreement given to an employee to consider (even if it is changed in the agreed version).

When drafting an employment agreement there are many things that must be included, and some things which it is a good idea to include.

The Must Haves...

  • The correct names of the employer and employee (their correct legal name).
  • Their role (not job description).
  • Their pay rate.
  • Where they will work.
  • Their hours of work.
  • What happens if they work on a public holiday.
  • The required wording for consultation during a restructure/redundancy.
  • Resolving disputes, and the 90-day personal grievance time limit (12 months for sexual harassment personal grievances).

The Good to Haves...

  • They must follow all policies and procedures.
  • The ability to suspend while investigating serious misconduct.
  • The ability to deduct money owing.
  • Ownership of Intellectual Property.
  • Restraints of trade- no competition, no taking clients or other staff.
  • Do not put your policies and procedures in the employment agreement.
  • If you do they cannot be changed unless the employee agrees. Have them in separate documents that can be changed when you want to.

90-Day Trial Periods...

  • These can only be used if you have under 20 employees.
  • They must be in writing.
  • They must include particular wording.
  • The employee must never have been employed by you before.

Fixed Term Agreements...

  • Must be for a genuine and reasonable reason e.g., a one-off project or parental care leave cover. Your funding is not regarded as a reasonable reason for a fixed term.

Getting your agreements right is vital to avoiding problems down the track.

Our firm has been looking after people just like you for over 100 years so we can ensure that you are totally looked after… in the way you are entitled to be looked after…

Call us for a relaxed friendly chat on 04 4736 850 or email us at lawyers@raineycollins.co.nz

Employment Resources