Posted on: Jul 16, 2013
It’s an awful situation to find yourself in, but it actually happens more often than you may think. Being sacked, fired, or instantly (summarily) dismissed without notice can be a huge shock to your system, and your finances! Feeling bewildered and not knowing where to turn or what to do is common. So, to give you a bit of advice with where to start we’re going to cover off the basics below. Were you on a trial period? Was your suspension fair? Did your employer follow a fair process? Did the punishment fit the crime? How do I raise a personal grievance if I think I was unjustifiably dismissed? We’ll answer these questions and more.
Check your employment agreement
First and foremost you need to locate and check your employment agreement. This is very important! Your employment agreement should cover off if you were on a trial period, what the expectations were for your employment, and what can be done to end the employment relationship. If your employer has house rules or other policies that apply to your situation you need to have a close look at these too.
On a trial period?
If you were on a trial period check you can tick the boxes on ALL of the following points – if any ONE of these conditions have not been met then you may have the opportunity to take a personal grievance for your dismissal despite being on a trial period, and you should seek advice immediately:
- An appropriate trial period clause must be contained in your employment agreement (see section 67A (2) of the Employment Relations Act 2000) – this includes the following as a minimum:
- For a specified period (not exceeding 90 days) starting at the beginning of the employee’s employment, the employee is to serve a trial period
- During the trial period the employer may dismiss the employee; and
- The employee is not entitled to bring a personal grievance or other legal proceedings in respect of that dismissal
- You have not been “previously employed by the employer” ever – not even as a casual employee
- Your employment agreement must be signed before you commenced work
- Your dismissal must be on notice (refer to your employment agreement to see how much notice you should receive as it is often shorter during the trial period)
- But for the ability to dismiss “grievance-free”, you must not have had any differential treatment to those employees not on a trial period during your employment
- Your dismissal must not have come totally “out of the blue” – you should have been given some prior indication (in terms of the good faith obligations of the Act) that it wasn’t going well
Was my suspension fair?
Generally, to justify suspension, your employer must have good reason to believe your continued presence in the workplace will or may give rise to some other significant issue. This includes things like imminent danger yourself and others and/or an inability to perform safety-sensitive work, real potential for serious economic damage to the employer, or where your presence at the workplace will or may hinder an investigation process.
Case law has established that the rules of natural justice apply to decisions to suspend; so that before being suspended you must have an opportunity to be heard (and the employer must give consideration to your response) before the decision to suspend is made. You must also be given the opportunity to seek advice on the proposed suspension. If any of these factors were not provided to you before being suspended you may have grounds to raise a disadvantage grievance.
Was a fair process followed?
Firstly, always check your employment agreement and any relevant employment policies, and ensure your employer has followed their own established process, every step of the way. With any dismissal, both the procedure and the substantive reasoning for the dismissal are equally important. Below is an example of what a standard fair process looks like. If any of these steps have not been taken, you should seek advice as you may have grounds for a personal grievance:
- Prior to any formal meeting you should be given notification in writing (at least 24 hours in advance), providing:
- All relevant documentation – policies, complaints, receipts, emails etc
- Everything that relates to the problem, issue of concern or allegation being made against you
- The potential level of disciplinary action should there be a negative outcome (eg a verbal, final written warning or dismissal)
- That you are encouraged/entitled to bring a support person to the meeting
- There should be no predetermination made by your employer. If they seemed to have already made a decision before you had a chance to have your say, and/or they brought a pre-prepared letter to the meeting then this is procedurally unfair and you may have an unjustified dismissal claim.
- During the meeting, there should be an adjournment for your employer to consider your responses before making a decision. The length of time will vary depending on the complexity of the matter and if further investigation is required. Without an appropriate adjournment, your employer’s decision may have been predetermined as outlined above.
- After the meeting you should have received confirmation in writing of the outcome.
- bringing drugs or alcohol to work, and/or consuming the same at work
- fighting or assaulting others at work
- deliberately disobeying a supervisor’s reasonable instructions
- refusing to follow safety rules
- criminal behaviour and dishonesty
- wilful cruelty to stock
- deliberately clocking someone else’s time card
- sexual harassment, and
- negligence or conduct seriously injuring the business, such as damaging plant or equipment.
- unjustifiably dismissed
- disadvantaged in employment by an unjustifiable action of the employer
- discriminated against
- sexually harassed
- racially harassed
- subject to duress in relation to union membership, or
- disadvantaged by the employer’s failure to comply with the Act’s requirements in relation to restructuring situations
Was the dismissal substantively justifiable?
If the process used by your employer was fair and reasonable, then the next step is to determine if the ‘punishment fits the crime’. A justifiable dismissal can result at the end of a performance management process where the required improvements have not been made, at the end of a disciplinary process where misconduct continues, or where the misconduct or performance is so bad (serious misconduct) that summary dismissal, without notice, is appropriate.
Actions that warrant summary dismissal are those that cause the employer to lose trust and confidence in the employee. For summary dismissal to be substantively justified, the employer must be able to show that the conduct was serious enough to justify dismissal; and, even if it was sufficiently serious, that, in all the circumstances, the employee should have been dismissed.
Following is a list of the kinds of behaviour that would usually fall within the serious misconduct category, and that would provide substantive justification for a summary dismissal:
Raising a personal grievance (“PG”)
Under section 103 of the Employment Relations Act 2000, a “personal grievance” is an action taken against an employer or former employer by an employee who claims to have been:
However in terms of being sacked, fired or dismissed, you’re probably looking at a personal grievance for unjustified dismissal, and sometimes also disadvantage. Under section 103A of the Act, your employer will need to ensure that their actions were what a “fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred”.
If you wish to raise a personal grievance, you must raise your problem with your employer within the period of 90 days from the date on which the action alleged to amount to a personal grievance occurred or came to your notice, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period (Employment Relations Act 2000, section 114).
A grievance is considered “raised” as soon as the employee has taken reasonable steps to make the employer aware that there is apersonal grievance which the employee wants the employer to address. However, there are a few rules to raising a personal grievance correctly. Simply saying “I have a personal grievance” or “I have been unjustifiably dismissed and want compensation and an apology” will usually be insufficient to advise the employer of the matters complained of. You need to provide enough details so your employer has sufficient information to understand what your employment relationship problem is about, and how you would like to see it be resolved (what remedies you seek).
We recommend getting advice from one of the team at Paul Diver Associates before raising your grievance. It can be a very tricky process, and we can help you in achieve a satisfactory resolution to your dispute.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.