Unfair Dismissal

Wrongful Dismissal or an Unfair Dismissal

An employee may raise a personal grievance against their former employer if they believe they have been unjustifiably dismissed.

The test is whether the employer’s actions and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

When considering a claim for unjustified dismissal, it is important to consider two elements: the process undertaken and the reasons for the termination of employment.

Procedural justification

No matter how serious the allegations, the employer is still required to conduct a fair and reasonable process. In fact, an employee will have grounds for a personal grievance on a poorly run process alone, so long as the shortcomings were more than minor and resulted in the employee being treated unfairly.

Section 103A of the Employment Relations Act 2000 provides that the Authority or Employment Court must ask itself the following questions:

  1. Did the employer sufficiently investigate the allegations against the employee before dismissing the employee?
  • What were the resources available to the employer?
  • Did the employer raise the concerns that the employer had with the employee before dismissing the employee?
  • Did the employer give the employee a reasonable opportunity to respond to the employer’s concerns before dismissing the employee?
  • Did the employer genuinely consider the employee’s explanation (if any) in relation to the allegations against the employee before dismissing the employee?

In considering a disciplinary process for serious misconduct or misconduct the employer must investigate and raise their concerns, provide the employee with an opportunity to give feedback, and genuinely consider the employee’s feedback before providing a final decision on the matter.

However, things can change when considering a restructuring process or a complicated investigation into say workplace bullying or sexual harassment.

For redundancy, like other processes, the employer must provide information and follow a proper process before undertaking any termination of employment.

The employer must ensure that the employee is being treated fairly in terms of having an opportunity to respond to all matters investigated and after all of the relevant information is provided.

Justification (reasons for the dismissal)

There are always a number of reasons for a dismissal. IR Thompson Associates have seen them all, fighting, swearing, bullying, stealing and sexual harassment.  The issue is the how, when and why…..What evidence is there, who are the witnesses….and so on.

In redundancy situations, this means asking yourself whether the redundancy was made for genuine purposes. Was there an ulterior motive, was there an alternative to redundancy, redeployment options. Did the employer properly consult, did you receive all of the information?

In poor performance circumstances, how was the employee failing, how did the employee fail to meet reasonable expectations, and did the employer provide coaching and training.

Unfair Dismissal.

So, if you have been fired or dismissed by your employer, contact us to allow us to give you an informed decision. We win and we know how to win well.