Unjustified Dismissal – Were you fired in an unfair manner?

Were you fired from your job in an unfair manner?

In New Zealand, all employees are given the right to pursue a personal grievance claim under the Employment Relations Act 2000 (“the Act”) if they have any of the following issues:
• Unjustifiable dismissal (where you were fired unfairly)
• unjustifiable action which disadvantages the employee (e.g. Not given a promotion or change of working hours/location)
• discrimination
• sexual harassment
• racial harassment
• any other discrimination (e.g. religion)
• duress over membership of a union or other employee organisation

Welcome_Max_Shin_to_Queen_City_Law___Queen_City_LawSo if you were fired, told to leave or had no other option but to resign (which is legally known as “constructive dismissal”) then you have a right to raise a personal grievance claim. However there is a time limit as this must be done within 90 calendar days from the date when the grievance occurred or came to your attention. There are several exceptional cases where you can bring a claim after the 90 calendar days so if you are outside this time, please contact us for further advice.

The parties should try to resolve any issues at the workplace and both parties may seek legal advice. This often means that if the employer calls a meeting with the employee, the employee should be granted the right to bring a support person and/or legal adviser. This is a very important right and if you are not given this option, you should raise this with your employer immediately. You should also be given warnings/notices in advance in a written form and there cannot be any signs that your employer has made decisions in advance (e.g. a notice requiring you to attend a meeting to discuss your dismissal is not good enough). If the parties fail to resolve the issues or are unable to reach an agreement then the parties can go to mediation through the Employment Relations Authority. The employee will still need to file Form 1 Application to Authority and this is best done with legal advice.

Mediation is the most important process as nearly 80% of employment claims are resolved/settled at mediation according to the Ministry of Business, Innovation and Employment statistics. Before a mediation, the employee should establish and support his/her claim by preparing the relevant documents which may include the employment agreement, records of wages, notice/letter and any other relevant documents to support the claim. You should always consider in advance your best strategy and reasonable settlement outcomes which again your legal adviser should assist with.

Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any further action in relation to matters dealt with in this publication.

You can read more about Max Shin here.

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