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Sexual harassment in the workplace

2018 has been the year for a global movement of people, in particular women standing up and telling their stories of sexual abuse and harassment. It began when the #MeToo campaign gained traction by celebrities sharing their own experiences of sexual misconduct in their chosen industry after Hollywood producer Harvey Weinstein became known as a […]

New Bill legislating for fairer workplaces proposed

The Government introduced a new Bill on 25 January 2018 which intends to amend the Employment Relations Act 2000 with the aim of providing greater protection for employees and workers. The Government believes there is a need to restore fairness and balance into New Zealand workplaces. The changes are as expected and include restrictions imposed […]

Personal grievances costly to defend

The EMA has released its annual analysis of personal grievance cases heard at the Employment Relations Authority, and again it was a sorry story for employers with employees’ winning 72% of cases. The average national award for hurt and humiliation has increased to just over $7,000 compared to $6,334 in the previous year.  Hurt and […]

What’s mediation all about?

When an employment dispute or personal grievance arises it can be very stressful for everyone involved. With work being a big part of most people’s lives, it’s understandable that when there’s an employment relationship problem in the workplace, it is important that they are dealt with efficiently, respectfully, and in a way that creates the […]

New Bill to allow higher income earners to contract out of Personal Grievance provisions

The Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill passed its first reading on 22 March 2017. The bill seeks to amend the Employment Relations Act 2000 by allowing employees with an annual gross salary over $150,000 to contract out of the personal grievance provisions. The Bill is intended to […]

Is pursuing a claim under the Human Rights Act really more lucrative?

A perception has developed among litigants and practitioners that pursuing a claim under the Human Rights Act has the potential to be more lucrative than under the Employment Relations Act (when the nature of the claim is such that it could be pursued either way). The question is, does this perception have any merit? It […]

What is a disadvantage grievance?

An employee may bring a personal grievance for disadvantage if, “the employee’s employment, or one or more conditions thereof, is or are affected to the employee’s disadvantage by some unjustifiable action by the employer”. (Section 103 (1)(b) of the Employment Relations Act 2000). We have found that personal grievances for disadvantage can be a bit of […]

Employee v Contractor – MBIE provides a handy tool

Employees and contractors have different rights and obligations under the employment legislation.  It is common that the distinction between an employee and contractor gets confused. The Labour Inspectorate, part of the Ministry of Business, Innovation and Employment (MBIE) has released a new guide for workers and employers that summarises the difference between employees and independent […]

Compensation for hurt and humiliation: some pointers from the Court

The Employment Court gave some useful pointers on how it arrives at awards of compensation for hurt and humiliation in the context of a case of an employee whose short-lived employment of about three weeks ended with two days of “stressful and traumatic” circumstances. On the first of these two days, he was dismissed after […]

What is a Calderbank?

Without prejudice save as to costs offers are commonly referred to as “Calderbank” offers. A major factor in deciding whether to bring a personal grievance will be the potential costs faced. Even if an employee succeeds, costs awarded are unlikely to cover the actual costs incurred. Further, the employer will also incur significant costs in […]

Move to increase remedies for personal grievances

A recent case has given ammunition to those seeking more realistic compensatory awards in the employment institutions. Until now, compensatory awards for hurt and humiliation for employees bringing successful personal grievances have commonly been between $5,000 and $7,000. Costs awards are normally far lower than the actual costs incurred, so the likelihood is that the […]

Judge reiterates her doubt over damages claims in dismissal situations

Judge Inglis has repeated her reservations about the “double-whammy” effect of dismissal and a damages claim, both arising out of the same poor performance during the employment relationship. She considers that it “sits uncomfortably with the statutory mechanisms for resolving employment relationship issues and may well have a chilling effect on employees considering a personal […]

Employment Court considers issues relating to contributory conduct

The Employment Court has considered — but not resolved — two interesting and important issues relating to the effect on remedies of blameworthy conduct The first issue was whether a 100% reduction in remedies was in fact permitted by s 124 of the Act (reducing the remedy due to contributing behaviour by the employee).  Chief Judge Colgan considered that […]

Don’t let the 90 day trial period trip you up

Beware – this law is interpreted strictly and employers need to get it right! Since 1 April 2011, the 90-day trial period has been available to all employers regardless of the number of employees.  Employers now have the opportunity to hire new employees subject to a trial period of 90 days or less. In the event […]

Constructive dismissal — aspects of the “final straw”

In Barclay v Richmond Services Ltd [2014] NZERA Auckland 126, the employee claimed she had been constructively dismissed. She said the employer wished to be rid of her and she listed a number of incidents for which she had been disciplined during her employment and claimed that a complaint that she had bullied a client […]

Recent case: Employees’ redundancy solution practicable

Employers who are considering making employees redundant must properly consider any proposals put forward by affected employees. If this is not done the employer will not have acted in a fair and reasonable manner and any dismissal for redundancy may be found to be unjustified. An employer who failed to properly consider a job share […]

Employee awarded over $90000 for unpaid wages and unjustified dismissal

Hill v Shand (Christchurch) [2014] NZERA 266 The employee in this case was hired as the manager of the Murchison camping ground. There was no written employment agreement between the parties but a verbal arrangement was made whereby the employee would be paid a salary of $30,000 per year and would also be entitled to […]

Employee with valid trial period wins disadvantage claim

Ms Balmaceda was employed by Amphibian Swimming Academy Limited (the respondent) as a swimming instructor on 10 June 2013 until she was dismissed on 15 August 2013 pursuant to a 90 day trial provision in her employment agreement. Ms Balmaceda filed a personal grievance alleging unjustified action by the respondent which caused her disadvantage. The […]

Recent case: Employment of family members problematic

Employing family members can lead to problems as the case noted below shows. Family members should always be given written employment agreements and be paid at least the minimum wage. In Meroiti v Lindale Lodge Ltd [2013] NZERA Wellington 104, Graeme was employed by his brother John as manager of the Lindale Motor Lodge. The […]

Recent case: Both old and new employers ordered to compensate employee after the sale of the business

When a business is sold, staff must be clearly told what is to happen to their jobs. If employment is to end, the vendor employer must carry out a proper redundancy process. If the purchaser wishes to employ existing staff, it must enter into new employment agreements with those staff. A failure to tell employees […]

Recent case: Facebook pages admissible as evidence

An employer who wanted to contest the truthfulness of an employee’s stated reason for taking sick leave successfully applied to the Employment Relations Authority for permission to put the employee’s Facebook pages recording the employee’s activities on the relevant dates into evidence. The Authority concluded that the evidence (although not available at the time the […]

Recent case: Failure to disclose use of mystery shopper deceptive

Section 4(1) of the Employment Relations Act 2000 imposes an absolute duty on the parties to an employment relationship not to mislead or deceive the other. In McManus v Home Direct Ltd [2013] NZERA Christchurch 98, an employer’s failure to tell an employee, who was dismissed for failing to follow proper sale procedures, that the […]

What is the Employment Relations Authority?

The Employment Relations Authority (ERA) is a more formal step to resolving an employment dispute or personal grievance if mediation doesn’t work. The ERA is an independent body set up to investigate workplace disputes. 

Both employers and employees can lodge an application in the ERA, the filing fee currently costs $71.56. Once an application has […]

I need some employment help!

If you are having a dispute with your employer/employee you should first try and discuss it with them. This isn’t always easy but it is a necessary step towards solving any dispute. If you can’t resolve the problem with your employer/employee then you have a few other options available: If you are an employee and […]

Recent case: Agent’s failure to raise grievance is an “exceptional circumstance”

When an employee does not raise an alleged personal grievance within the statutory 90-day period, the employee can make an application to the Employment Relations Authority seeking leave to raise the personal grievance out of time: section 114(3), Employment Relations Act 2000. The Authority may grant leave if: it is satisfied that the delay was occasioned […]

What to do if you’ve been dismissed

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 […]

Recent case: Headhunting could be costly

An employer who entices an employee into leaving a good job with promises of an even better job, and who subsequently makes the employee redundant, may find that its earlier representations amount to an estoppel which will support a conclusion that a fair and reasonable employer would not have dismissed the employee. In Brake v […]

Unwise to breach confidentiality provision

A recent case demonstrates the consequences of breaching an agreed confidentiality provision. An ex-employee entered into an agreement to settle his personal grievance at mediation. The agreement provided, “These terms of settlement and all matters discussed at mediation shall remain confidential to the parties”. The employee’s workmates (the employee was employed by a new employer) […]

Recent case: Drug testing unfair

A company’s failure to comply with the provisions of the drug policy covering its employees led to findings that the employees had been unjustifiably dismissed and demonstrates that employers, as much as employees, are bound by work policies. The company arranged, on separate occasions, for drug tests to be carried out on two employees, the […]

An example of how NOT to fire someone

Taken from the movie “Up in the Air” with George Clooney, this clip gives an amusing example of how NOT to terminate someone’s employment.  This movie is full of very amusing but highly unlawful firing’s that would undoubtably lead to a personal grievance for unjustified dismissal if such techniques were attempted in New Zealand.

What’s mediation all about?

Mediation can be a highly effective way to solve employment relationship problems and personal grievances. It’s unlikely that both parties are going to be ecstatic about the outcomes of mediation, however the aim is to achieve a settlement that both parties can live with. Properly utilised, it can mean real savings in time and legal fees, […]

Reminder that employer’s are to ensure meal breaks are taken

In a recent case, an employee was awarded compensation of $750 because her employer did not advise her of her right pursuant to part 6D of the Employment Relations Act 2000 (the Act) to take two paid ten-minute breaks during her working day. The employee had been employed for three years. The Employment Relations Authority […]

Recent case: Final warning given 10 months after incident disadvantaged employee

When a disciplinary investigation takes a long time to complete, the employer should take into consideration the length of time that has passed when deciding on an appropriate outcome. In Hyland v Air New Zealand [2013] NZERA Auckland 108, a flight attendant who, after being woken roughly from sleep shook the person who woke her […]

Recent case: Redundant employee reimbursed for lost wages

Generally, when a redundancy has been found to be genuine but the procedure undertaken by the employer in effecting the redundancy is procedurally flawed, the employee will not be entitled to be reimbursed for the resulting loss of remuneration. However, as the Employment Relations Authority pointed out in Rose v New Leaf Beauty Therapy Ltd […]

Recent case: Seasonal workers require fixed term employment agreements

An employer who employs seasonal workers must provide those workers with a fixed term agreement that complies in every respect with the Employment Relations Act 2000, section 66. An employer who has engaged a seasonal employee but has failed to provide for a fixed term and then dismisses the employee at the end of the […]

Variation of terms, “custom and practice” and implied terms of employment

As a general rule, contractual terms cannot be varied without the consent of both of the contracting parties. However, an employer has a right to manage his or her business. The line between the employer’s right to manage, which does not require the consent of an employee, and a variation of contract, which does require […]

New redundancy rule – employer’s decision scrutinised

An important decision has recently been made by the Employment Court in terms of redundancy law.  Last month the Employment Court ruled that it can scrutinise an employer’s decision to make an employee redundant to ascertain whether there were sufficient business reasons for the redundancy. In Totara Hills Farm v Davidson, the Chief Judge of […]

“Without prejudice” (off the record) discussions risky

Blakely v ACM New Zealand Ltd [2013] NZERA Christchurch 9 provides a textbook example of how not to initiate a “without prejudice” discussion about termination of employment. In that case, an employer was dissatisfied with the performance of one of its managers and resolved to dismiss her. The employer did not advise the employee about its […]

Court sets the bar high for waiving mediation confidentiality

An employee who wanted a blackmail threat allegedly made during mediation by her ex-employer’s representatives to be admissible evidence was unsuccessful before the Employment Court. The first ground for her application was that, being a criminal offence, the alleged blackmail could not form part of the “purposes of mediation” referred to in section 148 of […]

Employee reimbursed for cancelled holiday

The Employment Relations Authority determined that an unjustifiably dismissed employee had suffered the loss of a benefit because he had to cancel a pre-arranged holiday and it awarded the employee the amount of the cancellation fee. The Employment Relations Act 2000 provides for compensation for loss of any benefit that the employee might have expected […]

Dismissal justified by misrepresentations about health

An employer who dismissed an employee for failing to disclose a medical condition that could have affected his employment was held to have good grounds for terminating the employee’s employment. Mr Cook was employed by Allied Investments Ltd as a security officer working at night in a large factory using dangerous chemicals. As part of […]

Raising a Personal Grievance

An employee must raise a personal grievance with his or her 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 the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised […]

More 90 day trial period controversy

There have recently been two pre-employment ‘trial’ trial period cases before the Authority, which seem to have had conflicting determinations made.  Yet again, more questions have been raised regarding the interpretation of the 90 day trial period legislation, section 67A of the Employment Relations Act 2000. The first case (Ahuja v Eden Mozaik), involved an […]

Employee cannot contribute to no fault situation

It is worth remembering that an employer who defends a claim of unjustified dismissal by arguing the dismissal was justified because the employee’s position had become redundant cannot then claim that any award for unjustified dismissal should be reduced for contributory conduct by the employee. In Ross v Midtown Medical Ltd, the employer might have […]

Verbal settlement agreement enforceable

From time to time we come across a situation where one party to a settlement agreement fails to sign the agreement in writing, and/or tries to change the terms after an agreement has been reached.  When this happens, we’re often asked whether or not the verbal agreement is binding and enforceable.  Well in the case […]

90-day Rule for Raising a Personal Grievance

In accordance with section 114 of the Employment Relations Act, every employee who wishes to raise a personal grievance must raise the grievance with his or her employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of […]

Dismissal for Incompatibility

Question: My client B has an employee who B has come to thoroughly dislike. The employee is a black hole of self-pity and misery. B dreads seeing the employee in the morning and has reached the stage where everything the employee does drives B to distraction. The employee’s employment agreement provides for termination of employment […]

Restructuring, Redundancy and Selection Processes

We’ve all heard about the controversial “Massey v Wrigley” case, which has redefined the way we need to conduct our selection processes when restructuring, at least for the time being.  We’re hoping this piece of case law will change before too long, and Government has indicated that if it’s not resurrected through the Courts then […]

What is constructive dismissal?

Constructive dismissal occurs in the following situations: when an employer gives the employee a choice between resigning or being dismissed when an employer follows a course of conduct with the deliberate and dominant purpose of coercing an employee to resign when a breach of duty by the employer led the employee to resign With constructive […]

Resignation during a formal process

If an employee tenders his/her resignation during a formal process (disciplinary/investigation etc) it is important that the employer follows the correct procedure to ensure that the Company is not exposed to the risk of a personal grievance for constructive dismissal. Disciplinary procedures or investigations can be very stressful for employees and as a result they […]

What is a personal grievance (PG)?

Under 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: • unjustifiably dismissed • disadvantaged in employment by an unjustifiable action of the employer • discriminated against • sexually harassed • racially harassed • subject to duress in […]

Pitfalls of the 90-day trial period – employers beware!

This article was originally written in 2012.  We have revised and updated the content according to further developments in case law.  Please see the new article “Don’t let the 90 day trial period trip you up” published in August 2014. The 90-day trial period has been extended to all employers regardless of the number of employees.  […]