The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal and ordered an employer to pay $17,900 after dismissing an employee over concerns about a valid working visa.

The employee resigned from her job after nearly a year of employment. Whilst working out her notice period the employee and the employer entered into a discussion about the employee’s eligibility to work.

The employer questioned whether the employee was eligible to be working out her notice period as she had made updates to her work visa. The employer grew concerned and informed the employee that she could finish the day’s work but shouldn’t return to work out the rest of her notice period.

The employee subsequently raised a personal grievance claim of unjustified dismissal against the employer.

The Authority had to decide whether or not the employee was entitled to work out the remainder of her notice period, and whether the employer stopping her from doing so amounted to unjustified dismissal.

The Authority decided that the employer failed to properly investigate the employee’s visa status prior to the dismissal, even though they had the ability to do so with relative ease.

The employee was not provided with notice of the dismissal and no dismissal process was followed. This led the Authority to conclude that the dismissal was unjustified.

The employer argued that they believed the employee to be working illegally and had no choice but to immediately dismiss her. The Authority was not provided evidence to this effect and did not accept this argument.

The employer was ordered to pay $8,000 as compensation for the hurt and humiliation caused, $2,900 as compensation for lost wages and holiday pay, and a penalty of $7,000 for failing to pay the employee her wages when they were due, as well as a failure to keep adequate wage and time records.

If there is confusion around the process when dismissing an employee, it pays to seek advice from a professional with experience in the area. 

 

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Alan Knowsley & Matthew Binnie

Litigation Team
Wellington