Legal Advice

Do I need to have a written agreement?

Yes. As a minimum, your agreement must contain the following, in writing:

• Names of the employee and employer
• A description of the work to be performed
• The location of where the work is to be performed
• The hours of work
• The salary/wages to be paid
• An employee protection provision (see our article for more information)
• A plain-language explanation of the services available for the resolution of employment problems. This must also include a reference to the 90 day period for raising a personal grievance
• A description of the employee’s entitlements to leave under the Holidays Act 2003
• You are entitled to take the agreement away and get advice. You are entitled to a reasonable amount of time to seek this advice.
• We strongly recommend that you take this opportunity to have the agreement checked.

Can my employer change the terms of my employment agreement?

No. Your employer can not force you to change your signed agreement. An employer can not vary your agreement without your mutual consent. We recommend that you contact us to determine your rights on variations. Also if you do not have a written agreement and your agreement is verbal then you have still had rights. For example, your employer can not change your pay, start time, finish time, position, and days of work without your consent. However, this can be more complicated for both employer and employee so it is best that you call us first.

What is a personal grievance to fix an unfair dismissal.?

A “personal grievance” is one of the main ways for employees to take a legal claim against their employer if they believe their employer has acted unfairly or unreasonably towards them normally an unfair dismissal.

You can use the personal grievance process if your employer has fired (“dismissed”) you unfairly or done something else you think is unjustified, such as unfairly or unreasonably putting you off work (“suspending” you), giving you a written warning, or giving you a lesser job (“demoting” you). A personal grievance is also available on certain other grounds, like discrimination and sexual harassment.

Employment Relations Act 2000.

There’s a particular process you must follow when you bring a personal grievance. You must first raise the issue with your employer within 90 days. Then, if you’re not satisfied with their response mediation service is available via MBIE. If mediation doesn’t work, you can take your grievance to the Employment Relations Authority.

On what grounds can I bring a personal grievance?

• unjustified dismissal – when you’ve been unfairly fired (unfair dismissal.)
• unjustified disadvantage – when your employer did something unreasonably or unfairly that negatively affected your employment conditions – for example taking away a benefit
• discrimination
• sexual harassment
• racial harassment
• breaches around hours and shifts – a breach of your rights around agreed hours, availability clauses, cancellation of shifts, or restrictions on other (“secondary”) employment.

Raising a personal grievance when you’re working for a labour-hire company (“triangular employment”) What is triangular employment?

Triangular employment is where you’re employed by one employer but you spend your day working directly for someone else – for example, you’re employed by a labour-hire company but work day-to-day for another company on a building site. This can be a short-term or long-term arrangement.

Taking a personal grievance if you work for a labour-hire company. Unfair dismissal.

Employees employed by labour-hire companies who are treated unfairly by the company that supervises them day-to-day (the “controlling third party”) will now be able to take a personal grievance claim to the Employment Relations Authority, not only against the labour-hire company but also against the controlling third party for the unfair dismissal.

How much time do I have to raise a personal grievance for any claim or unfair dismissal.?

You must raise the personal grievance with your employer within 90 days after the action that led to the personal grievance, or within 90 days after you became aware of the action, whichever is later.

You can raise a personal grievance after the 90-day period only if your employer agrees to this or if the Employment Relations Authority allows it. The Authority will only allow this if there are exceptional circumstances and it would be “just” to allow it.

What happens after I raise a personal grievance?

If you’ve raised a personal grievance for an unfair dismissal with your employer and you’re not satisfied with their response, a free mediation service is available to help resolve the problem – this is the Mediation Service run by the Ministry of Business, Innovation, and Employment (MBIE).

If mediation doesn’t work, you can take a case to the Employment Relations Authority.

When will a dismissal be unjustified?

If you bring a personal grievance for unjustified dismissal, the Employment Relations Authority will decide the case objectively, by looking at whether your employer’s actions were what a fair and reasonable employer could have done in the situation.

This includes looking at whether:

• your employer had a good reason for dismissing you (this is called “substantive fairness”), and
• your employer followed a fair process in dismissing you (“procedural fairness”).

Reasons for a dismissal: What is “substantively” fair?

There can be many valid reasons for dismissing an employee. Whether or not a reason is substantively fair will depend on the particular circumstances.

Reasons for dismissal can generally be grouped into two categories:

serious misconduct – this will justify immediate (“summary”) dismissal, which means you don’t work out a notice period and you’re not paid for a notice period. Not fired on the spot, every dismissal requires a process. or

less serious misconduct – in these cases your employer will usually have to give you warnings and an opportunity to change your conduct or to improve your performance before you can be justifiably dismissed.

Limited examples of serious misconduct:

• fighting and assault – relevant factors to consider here may include:
• direct disobedience – for example, openly and deliberately refusing to obey a lawful and reasonable instruction given by your employer or supervisor or some other person in authority.
• Dishonesty
• insubordination – for example, offensive language or publicly criticising your employer.
• behaviour that seriously endangers the health and safety of others
• breaching work rules – for example, work rules that bar you from:
• possessing drugs and other illegal substances
• being drunk or otherwise intoxicated while working
• sleeping at work.
• disclosing confidential information – you owe a duty to your employer to uphold confidentiality during the term of your employment.

The Process: When will a dismissal be procedurally fair?

Whether your employer followed a fair process in dismissing you will depend on the particular circumstances. The Employment Relations Authority will consider the following:

1. whether your employer adequately investigated the allegations against you (but the Authority will take into account the resources available to the employer)
2. whether your employer’s concerns were properly communicated to you
3. whether you had a reasonable opportunity to respond to any concerns your employer raised
4. whether your employer considered your explanation with an open mind before making a decision.
5. The Authority won’t find that your dismissal was unjustified just because there were minor defects in the process the employer followed, if these didn’t result in you being treated unfairly.

What if I’m on a trial period?

You can’t bring a personal grievance if you’re dismissed during a trial period.

For a trial arrangement to be valid:

1. it must be stated in writing in your agreement, and
2. it must be for a specified period, beginning when you start work and lasting no more than 90 days, and
3. your agreement must state that your employer can dismiss you during the trial period and that you’re not entitled to bring a personal grievance or take other legal action in response.
4. A trial period won’t be valid if you’ve previously been employed by that employer, even if this was only for an hour.

What if my employer effectively forces me to resign?

If you’ve resigned from your job in response to the way your employer has behaved towards you, this may amount to unjustified dismissal; it’s known as “constructive” dismissal.

Behaviour by an employer that could amount to constructive dismissal could include:

• coercion and threats (you will need prove)
• making major changes to your employment agreement without your consent
• telling you to resign or else be dismissed (you will need prove)
• deliberately following a course of conduct with the intention of forcing you to resign
• failing to make your workplace safe
• falsely accusing you of misconduct.

Can a redundancy be an unjustified dismissal?

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.

Taking a personal grievance for unjustifiable disadvantage

You can bring a personal grievance if your employer does anything unjustifiable that affects your employment or conditions of work in a way that disadvantages you. This might include:

demoting you, suspending you without pay, withdrawing work, giving you an unjustified warning or withdrawing a benefit, such as the use of a company vehicle.

The Employment Relations Authority will decide the case objectively, by looking at whether your employer’s actions were what a fair and reasonable employer could have done in the situation.

This information is not a substitute for legal advice and we recommend that you visit or call before acting on the material you have read.