Understanding Unfair Dismissal

Whether you’re an employee or an employer, unfair dismissals are sure to be a difficult and sensitive process to navigate. So, what do you need to know?

As an employee, if you’ve been dismissed from your job in a manner that could be considered unjustifiable, you may be able to raise a personal grievance for unjustified dismissal against your employer under the Employment Relations Act 2000.

If you’re successful in raising this grievance, you may be entitled to remedies including compensation for lost wages and hurt and humiliation, or possibly even reinstatement of your job — but, be quick! In New Zealand, you only have 90 days from the date of the dismissal or the action complained of to raise a personal grievance with your employer, so it’s crucial you act promptly.

On the other hand, as an employer, you have several obligations and responsibilities under New Zealand law — one of which is to carry out fair and reasonable processes when dismissing employees. If an employee raises a personal grievance alleging unjustified dismissal, you’ll want to defend your actions to maintain your reputation, even if you believe the dismissal was justified.

Below, we’ll outline how to approach unjustified dismissal as either an employee or an employer in New Zealand.

What Is An Unjustified Dismissal?

To put it simply, unjustified dismissal occurs when an employee’s termination of employment is not carried out fairly or reasonably by the employer. This could be due to a lack of substantive justification or because the employer did not follow a fair process.

Some factors that may be considered when deciding an unjustified dismissal case include:

• Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct;
• Whether the employee was informed about the allegations and given a fair opportunity to respond;
• Whether the employer genuinely considered the employee’s explanation before making a decision.

It’s important to note that many unjustified dismissal cases and terminations can also involve claims of workplace bullying or discrimination.

If an employee feels they were forced to resign due to the actions of their employer, this is referred to as a “constructive dismissal”. It can still be considered an unjustified dismissal under New Zealand law.

What Do Employers Need To Know About Unjustified Dismissals?

As an employer in New Zealand, you may be notified of a personal grievance claim when you receive a written statement of the grievance from the employee. This notification means that the employee believes there are grounds for a claim and is formally raising the issue with you.

Receiving a personal grievance claim can be unsettling, but it’s crucial to respond appropriately and engage in good faith bargaining. Ignoring the process can lead to further complications and potential legal consequences.

Employers have the right to seek legal advice and should attempt to resolve the grievance through discussion with the employee or mediation services provided by the Ministry of Business, Innovation and Employment (MBIE).

If the matter cannot be resolved through mediation, it may proceed to the Employment Relations Authority for investigation and determination. Employers should prepare by gathering evidence and documentation to support their case.

Having a well-drafted Staff Handbook and clear employment policies can be invaluable in the event of an unjustified dismissal claim. These documents can demonstrate that employees were aware of the standards expected of them and the processes that would be followed in case of issues.

What Do Employees Need To Know About Unjustified Dismissals?

If you’re an employee, you need to be aware that to raise a personal grievance for unjustified dismissal, you must do so within 90 days from the date of the dismissal or the date the grievance arose.

It’s essential to provide your employer with a written statement outlining the nature of the grievance and the remedies sought. If you cannot resolve the issue directly with your employer, you can request assistance from MBIE’s mediation services.

If the grievance is not resolved through mediation, you may take the case to the Employment Relations Authority, where a determination will be made.

Possible remedies include reinstatement, reimbursement of lost wages, and compensation for humiliation, loss of dignity, and injury to feelings.

Key Takeaway

Whether you’re an employee or an employer in New Zealand, dealing with unjustified dismissal claims requires prompt and fair action. Understanding your rights and obligations is key to navigating this process effectively.

If you need assistance with an unjustified dismissal claim or defending against one, give us a call on 0800 002 184 or email us at [email protected]. We’re here to help!

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