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Unjustified dismissal before employees started work

In a recent case out of the Christchurch Employment Relations Authority, two employees were unjustifiably dismissed before they had even commenced work. An important point to note is that the 90 day trial period was not able to be relied on because the employment had not actually commenced. Two female employees were employed to work […]

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 […]

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 […]

Expired warning used to justify dismissal

The Employment Relations Authority said an expired final written warning was part of the circumstances that an employer was entitled to take into account when considering an appropriate sanction under the justification test in section 103A of the Employment Relations Act 2000, and that equally a fair and reasonable employer could be expected to have considered […]

New Law for Redundancy Dismissals

An important Court of Appeal decision has been released which changes the substantive justification for redundancy Introduction The statutory test of justification, which requires the analysis of “what a fair and reasonable employer could have done in all the circumstances” is to be applied to all dismissal situations. A dismissal for redundancy requires the same […]

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 […]

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: 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 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 […]

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.

Case study: Circumstances for constructive dismissal

In the case study below we look at the circumstances for constructive dismissal and advise the likelihood of a successful personal grievance claim. Background: I am the owner of a club and bar in downtown Auckland. My night-time receptionist X has brought a personal grievance against my company claiming that she has been constructively dismissed […]

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 […]

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 […]

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 […]

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 […]

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 […]

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.  […]