UNFAIR DISMISSAL or FORCED RESIGNATION

Being dismissed from employment is an incredibly difficult time that can be made even worse when you have been dismissed in an unfair or unjustified manner. It can be difficult to establish whether or not you have been unfairly dismissed, as there are many aspects that need to be addressed before this can be determined.

There are a number of ways that a dismissal can amount to one that is considered unfair or unjustified, such as by a procedural issue, or a constructive dismissal.

Procedural Fairness

One thing that can often amount to an unfair dismissal is the procedure an employer takes when going about the dismissal. Procedural fairness essentially means that the process of dismissing someone should be done fairly. It seems simple, however there is more to this than meets the eye.

The question that is asked when looking at this is- is it what a fair and reasonable employer could have done in the circumstances? While this is a good guideline in deciding whether a dismissal was unfair, it does not specify what steps should be taken when there is a dismissal.

In order to determine if a dismissal can be considered unjustified or unfair, we need to turn to section 103A of the Employment Relations Act 2000. This provides us with specific aspects of the procedure to look at when establishing an unfair dismissal. These include whether the employer sufficiently investigated the allegations against an employee before taking action, whether the employer raised the concerns with the employee before the dismissal, whether the employer gave the employee reasonable time to respond to these concerns, and whether the employer genuinely considered the employees’ response before deciding.

This section of the Act definitely provides more of a general idea of what the procedure must be before the dismissal occurs. In order for there to be procedural unfairness, there must be a major flaw in the process, not one that is only minor.  If these steps aren’t taken, the employee may have reason to consider their dismissal one that was unfair and raise a personal grievance against the employer.

Substantive Fairness

Procedural fairness is not the only thing one must consider when looking at an unjustified dismissal. One must also look at the substantive fairness of the dismissal, which essentially means whether the employer had a good reason to dismiss the employee.

There are a number of reasons which may be considered a good reason for the dismissal, such as performance issues, workplace changes, a disciplinary process, or bullying or harassment behaviour in the workplace. If the employer finds that these issues are at play and they follow the correct procedure when determining these issues, it may result in a justified dismissal of the employee.

Constructive Dismissal

Constructive dismissal is where the employee is threatened with “resign or be fired”, where the conduct by the employer effectively forces resignation on the employee, or finally where there is a breach of duty by the employer that leads to the resignation of the employee. Essentially, the employee feels they have no option but to leave their employment.

If the employer gives an employee, the option of “resign or you will be fired”, this would be considered a constructive dismissal, as the employee is given no choice other than “choose to leave or be forced to leave”.  Either way, the result is that the employee will no longer be employed by the employer.

The other type of constructive dismissal is based upon the conduct of the employer. If the employer behaves in a way that has the deliberate purpose of forcing an employee to resign, this is a constructive dismissal. These can be acts such as giving excessive workloads, excluding an employee from meetings, or cutting off communication.

The final category for a constructive dismissal is a breach of duty that results in the employee resigning. This could be a breach of good faith or a breach of confidence and trust among other things. This is essentially a situation where the employer has acted so badly by treating the employee so unfairly that they feel they have no other option but to resign. This could be a situation where an employer has failed to pay the employee their wages, where the employee has had their hours significantly reduced with no consultation, or where the employer has knowingly allowed bullying of an employee to continue in the workplace.

A constructive dismissal is considered to be an unfair or unjustified dismissal and so you are able to raise a personal grievance within the 90-day period.

How We Can Help

Unfair dismissals can be a difficult thing to establish, especially when there are so many different aspects of the situation that need to be considered. If you believe that you have been unfairly dismissed, contact the professionals at I.R Thompson for assistance. Contact us for a free consultation on 03 383 9988 or at admin@irt.nz.