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Employment problems can escalate quickly in Auckland. Clear and objective advice is crucial.
Expertise
An unjustified dismissal occurs where an employer does not have good reason to dismiss or has not followed a fair process.
If you think you were wrongfully dismissed, Fred can provide an independent assessment of where you stand and what you can do. This may include raising a personal grievance and seeking reinstatement.
Many employment agreements contain non-compete and non-solicitation clauses. You may be worried about your employer enforcing these after you move on.
Get clarity on whether these clauses are enforceable now. Fred can provide a plan on what you can do before you start your new job.
Disputes about interpreting and applying terms of an employment agreement can have significant consequences. They can affect the benefits under an agreement, such as access to annual leave, parental leave, payments of incentives and commissions.
In New Zealand, these disagreements do not need to be contentious. With the right support, they can be addressed without damaging the employment relationship.
Every business has the right to reorganise its business to realise efficiencies and save cost. But an employer must consult with employees whose jobs will be adversely affected by any changes.
An employer cannot use a restructure proposal for ulterior purposes. It also has a duty to identify redeployment opportunities for any employee who may lose his or her position.
WorkSafe NZ defines workplace bullying as repeated and unreasonable behaviour directed toward a worker or a group of workers that can lead to physical or psychological harm.
Harassment involves a pattern of behaviour directed at a person. The behaviour involves an act which can cause that person to fear for his or her safety.
It is vital to have support if you are under investigation at work. If you are facing allegations of serious misconduct and are worried about being dismissed, early advice can make all the difference.
Regardless of what you are facing, you are entitled to be treated with good faith and in accordance with natural justice.
Sometimes an employee can feel forced to resign. There are three ways this can be considered constructive dismissal.
First, where the employer gave the employee a choice between resigning or being dismissed.
Second, where the employer followed a course of conduct with the deliberate and dominant purpose of coercing the employee to resign.
Third, where the employer breached a fundamental duty causing the employee to resign.
Being an employee in New Zealand brings with it a number of safeguards and entitlements. For example, annual leave, sickness and bereavement leave, the right to be paid at least the minimum wage and the right to be treated in accordance with the duty of good faith.
A contract that rules out an employment relationship is not determinative. The Employment Court or Employment Relations Authority must determine the real nature of the relationship. These disagreements do not need to be contentious. With the right support, they can be addressed without damaging the employment relationship.
Often an employee is answerable to more than one entity. This can lead to confusion and a lack of accountability on the part of one of the entities.
In New Zealand it is possible for there to be more than one employer (joint employment). The Employment Relations Act also recognises triangular employment relationships, where one of the entities is considered to be a controlling third party.
In New Zealand it is unlawful to discriminate against an employee on one of the prohibited grounds set out under the Human Rights Act 1993. There are many prohibited grounds, including sex, marital status, ethnic or national origins, disability, age, and employment status.
Discrimination can give rise to a claim under the Employment Relations Act 2000 or the Human Rights Act.
Most employment relationship problems are resolved when the employer and employee agree that a negotiated outcome is better than an ongoing dispute.
This commonly occurs in mediation or during confidential discussions between the parties’ representatives. MBIE provides a free mediation service. It is confidential and is managed by an independent mediator. It is sensible to have your own representative and adviser to chart the best way to resolution.
The intervention of the Employment Court or Employment Relations Authority may be necessary when employment problems cannot be resolved by the parties. To stand the best chance of success it is vital to have professional representation and support.
Fred Hills has represented clients at the Employment Relations Authority, Employment Court, District Court and the Court of Appeal.
The Privacy Act 2020 defines personal information as information about an identifiable individual. Any collection of personal information must be for a lawful purpose, collected by lawful means, and be protected by reasonable security safeguards. Employees have a right to access their personal information.
Breach of privacy can lead to complaint to the Privacy Commissioner and an award of damages at the Human Rights Review Tribunal.
Payment for work is fundamental to the employment relationship. When issues arise related to failure to pay wages or miscalculation of annual leave, they should be addressed immediately.
An employer’s failure to comply with obligations related to wages and holiday pay can lead to financial penalties and an order pay arrears of wages. Anyone involved in the breach can also face penalties. In certain circumstance the person involved in the breach can be liable to repay unpaid wages.
Parental leave entitlements are set out in the Parental Leave and Employment Protection Act 1987. In addition, employers are increasingly adopting their own parental leave policies. These polices act as recruitment and retention incentives for employees.
Employers do not have to keep employment open for employees who are unwell. Before dismissal, employers must follow a fair process. An employee will need to balance the desire for privacy and providing the employer with information that may (or may not) support a return to work.
This is an area which requires sensitivity and care. While procedural requirements have remained the same for some time, there is a greater expectation on employers to take into account the frailties and challenges of employees caught up in these processes.
An employer has the right to manage the performance of underperforming employees. The primary objective must be to improve performance. This can result in a performance improvement plan (PIP).
It is common for employees to feel that that they are being set up to fail or that they are being targeted. An independent assessment of the situation can provide clarity as to whether the employer’s concerns are valid.
Disclosure of serious wrongdoing will be protected if disclosed in accordance with the Protected Disclosures (Protection of Whistleblowers) Act 2022. Whistleblowers often make disclosures before seeking advice. Improperly made disclosures can lead to allegations of serious misconduct leading to summary dismissal.