Employment Law
Advocacy
Danny Gelb Employment Law Advocacy
6 Tautari Street, Orakei, Auckland
Ph 0800 HELP ME (0800 4357 63)

Redundancy resolved with mediation and employment law

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 Redundancy

 

I have been made redundant. What can I do?

 

There are a couple of aspects to being made redundant that you can look at.  Primarily take a look at your employment contract and what it says on redundancy.  Does your situation reflect what your contract says?  If it doesn't then you may have cause for a personal grievance.  Even if it does the provisions in your employment contract may be contrary to New Zealand law. It still amazes me what some employers put in their employment contracts.  The saving grace is that you can not contract out of law, or in other words a clause that goes against New Zealand employment law is not enforceable in an employment contract. If your contract does not cover redundancies then you are not entitled to a redundancy payment. At a minimum your employer must give you notice of the same time or greater as the termination notice period in your contract.

 

Is your redundancy genuine?

Some employers use the redundancy line to get rid of staff they don't want however they don't have legitimate grounds for termination. These situations are generally not too hard to spot. Is the business really struggling? Have they made any major purchases lately? Has the owner been on a big holiday recently? Keep an eye on job advertisements to see if you can find your job listed in the situations vacant. There are various way to determine if you have been replaced after your employment has finished. I leave that up to your imagination.

 

Has your employer followed due process? 

The employer has an obligation to act in good faith.  What we consider good faith would be calling a formal meeting with you.  This would be by way of written notice, giving you at least 24 hours notice and advising you that you can bring along a support person.  The topic of redundancy would need to be stated in the written notice. A discussion at the meeting would include input and feedback from you to the employer over the issues of redundancy, the possibility of being utilised elsewhere in the company along with any other suggestions anyone may have as to how the issue of redundancy could be possibly mitigated or alternate solutions to the problem that has caused the redundancy situation. The employer would then close the meeting and deliberate over what was said and then deliver his/her decision at a later date. If your redundancy process was not similar to what I have just described then possibly the employer may not have acted in good faith and you may have a personal grievance claim against them.

 

Where to from here? 

Once we have had a look at your situation we can advise if you have a case or not.  If you do then the first step is to set up a meeting with you and your ex-employer to attempt to resolve the situation in a consensual manner.  Should your employer refuse to meet or the meeting does not result in an agreement then the recommended option is to approach the Department of Labour Mediation Services to request a formal mediation between the parties. In the unlikely event that does not produce a result then you have the option of laying a formal complaint with the Employment Relations Authority who will then instigate an investigation into the matter.  This is a costly process as both sides will need full legal representation. 

 

No two redundancy situations are the exactly the same.  Please don't hesitate to contact us on 0800 746 225 or danny.gelb@mediate.co.nz to discuss the particulars of your situation.  Don't forget that our initial consultation with you is free.