So you’ve been fired. Is the dismissal an unfair dismissal?
What is an unfair dismissal in NZ, what rights do you have as an employee to fight an unfair dismissal. Now an unfair dismissal could be a dismissal under the 90 days trial period, a redundancy or for alleged misconduct. Either way, you need to consider if you want to obtain legal advice by using our first consultation free service to determine your claim.
Below is an overview of a suggested process on redundancy and dismissals, read this to see if your dismissal is unfair. We are based in Christchurch but can offer you some advice by phone if required.
Every employee is entitled to challenge a dismissal, this could be a dismissal for redundancy or misconduct. During this process, you can be represented by a Barrister, Union, Solicitor, Employment Lawyer or Employment Advocate.
First, the employer must show that it was substantively justified in reaching its decision. (the reason why you were fired). Second, it must establish that it carried out the dismissal in a procedurally fair manner. (how it conducted itself to reach it decision, eg meetings or investigations). The employer must also ensure that any resignation is not coerced or forced; this type of forced resignation comes under the definition of a constructive dismissal. For a dismissal to be substantively justified a range of reasons may be relied upon. These include:
- Poor performance
- Serious misconduct
- Misconduct after warnings
- Medical grounds
- Abandonment of employment
Employment law requires that decisions come from a fair process. This is often referred to as ‘procedural fairness’.
The requirements of a fair process can include that:
• Allegations of misconduct/serious misconduct be promptly investigated and with an open mind.
• Employees be provided with sufficient and specific information about the alleged offence(s) and the possible consequences.
• Employees be informed of their right to have a competent representative present at meetings carried out with the employee for the purpose of investigating the allegations.
• Employees are afforded a real opportunity to respond to the allegations and an unbiased consideration of the employee’s explanation.
You have been unfairly dismissed if the employer has not followed the below best practices.
Procedural Fairness – Redundancy
Employers must have a genuine business reason to justify redundancy and must engage in a consultative process with relevant employees before any decisions are made.
- Solidify business reasons. The employer must be able to clearly identify the rationale behind the restructuring. This must be a genuine business reason and nothing to do with the employee (s) or their performance. If more than one employee is undertaking the same role, then it may be necessary to involve a number of employees in the restructuring process.
- Arrange meeting. The employer should draft a letter to the employee setting a time and place to meet. The employee should be advised that the purpose of the meeting is to allow them to seek clarification, and provide their feedback in relation to the proposed restructuring. The letter should outline in detail, the reasoning behind the proposed restructuring, and give full details of the proposed restructuring that is to occur. The letter must make it clear that no decision has been made, but that the employer is proposing changes which will affect the employee’s employment, and that the employee is entitled to have a representative or support person present at the meeting. The employee should be given at least 48 hours notice of the meeting, and given any relevent information at this time.
- At the meeting, the employer should ensure the employee fully understands the proposed restructuring and possible effect it would have on the employee’s employment. The employer should not make any comment which indicates a decision has been made regarding any new structure or any changes to the employee’s position. The employee should then be given an opportunity to provide their feedback in relation to the proposal.
- If more than one employee is involved in the process, there should also be some discussion regarding a fair selection criteria to determine which employees are made redundant; again seek specialist advice in such circumstances.
- Once the employees have provided their feedback, the meeting should be adjourned for the employer to consider the feedback provided (if any).
- Once the consultation process has been completed, the employer is in a position to make and communicate a decision in relation to the proposed restructuring. This should be confirmed in writing.
Unfair Dismissal claim
You can be assured of confidential advice from experienced employment advocates. We are specialists in providing employment advice for employers and employees. You will receive honest opinions put in plain language that you will understand.
Dismissals for serious misconduct or poor performance can only follow a fair and reasonable investigation to establish the facts supporting an allegation of serious misconduct or into issues of poor performance.
It is very easy to get the process wrong and be liable for an unjustified dismissal. The vast majority of findings in the Employment Relations Authority and Employment Court relate to a poor process issue rather than the facts of misconduct or performance.
Redundancy is when your employer decides that your position is no longer needed by the business or organisation. In this case you haven’t been fired – your job has been disestablished.
The question of whether what seems to be a redundancy in fact amounts to an unjustified dismissal depends on whether the decision to make you redundant was one that a fair and reasonable employer could have made in that situation, and whether your employer followed a fair process in coming to this decision.
A significant process will need to be followed by the employer to fairly undertake a redundancy.
Call us first for your free appointment to allow us to look at the facts as we will give you legal advice on the unfair dismissal claim. We can tell you the value and if you can win.