Employment Law Brochure
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New Zealand employment rights and obligations are primarily controlled by the Employment Relations Act 2000. This Act of Parliament states what your rights are as an employee. The essence of this law is that your employer must treat you in a fair and just way in handling all aspects of your employment, and they must act in good faith at all times. Should they not treat you in a fair or just manner, or should they act in a way that either disadvantages you or leads to the termination of your employment, then you may be justified in raising a personal grievance matter against your employer. You may also be able to claim and receive compensation for the action that you perceive to have been unjust, unfair or wrong.
As an employee, you must also act in good faith in handling all matters of employment with your employer. Should an employer be able to establish that you have not acted in good faith and that you have contributed, in a negative way, to the situation, any money the Employment Relations Authority may award you in compensation for your personal grievance, may be reduced.
An employee may raise a personal grievance against their employer at any time within 90 days from the date of the incident that caused the employee to feel personally aggrieved. A grievance is raised by a letter being sent to your employer stating that you have a personal grievance, what has happened to cause you this personal grievance and what you want the employer to do to make this matter right. It is important that this letter be written correctly otherwise it may not be considered a valid personal grievance claim and by the time you realise this, the 90 days may have passed. If you are unsure, then you can contact us for free advice or we can help write this letter for you.
Disciplinary meetings are called by employers if they have an alleged example of misconduct or a performance issue that they want to investigate or discuss with you. For this meeting to be fair on you, your employer must give you written notice of the meeting, stating at a minimum:
- that it is a disciplinary meeting
- the time and date of the meeting
- the allegations they are making against you
- the possible outcomes of the meeting
- that you are entitled to bring a support person to the meeting.
You have the right to reschedule the meeting if your support person cannot make the time that your employer proposes. If your employer fails to include all of the above in the notice, then the meeting may be unfair and unjust on you and you may have grounds for a personal grievance.
The best type of support person to take to these meetings is someone who has knowledge of employment law. A friend or work colleague may give you comfort at these meetings. However, if they don't know employment law, they may not be able to advise you of your rights. Sometimes we can attend these meetings as your support person free of charge to you, subject to our availability.
The typical outcomes of a disciplinary meeting include:
- no further action required
- a verbal warning
- a written warning
- termination of your employment.
Should you believe that the outcome of your disciplinary meeting is not justified and your employer is wrong in their decision, then you can challenge it by raising a personal grievance. Thought should be given before you raise a personal grievance because it may affect your long term employment relationship with your employer. We can talk you through the positives and negatives of raising a personal grievance.
Redundancy is an unfortunate risk of employment that cannot be avoided. In reality you have very little control over your company's situation and the need or not for redundancies. There is no legal requirement for an employer to pay you anything extra for a redundancy.
However, employers are required by law to go through a consulting process with you. This includes talking with you about the possibilities of redundancy and seeking your feedback before they make their final decision.
Similar to a disciplinary meeting, they must give you written notice of the meeting incorporating most of the same information as a notice for a disciplinary meeting. Your employer is also required to have a genuine need for the redundancy. They cannot simply use redundancy as an excuse to get rid of an employee they no longer want working for them. Should an employer fail on either of these two points, then you will most likely have a genuine cause to raise a personal grievance.
There is an urban myth floating around many work places that, if an employee does not like their job or their working conditions, they can simply resign and make a personal grievance against their employer on the grounds of constructive dismissal. This is simply not true.
The Employment Relations Act 2000 is mostly written in such a way that the onus is on the employer to disprove the allegations of the employee. This changes, however, with constructive dismissal as the onus of proof is on the employee to prove that they have been constructively dismissed. Most cases for constructive dismissal fail because the burden of proof is very high. It is usually only successful in situations where the employer has:
- stopped paying the employee
- forced major changes to the employee's working terms and conditions without the agreement of the employee
- informed the employee that if they do not resign, their employment will be terminated.
If you fear for your personal safety or wellbeing at work then get yourself out of there straight away. Once you are in a safe place call me for help (0800 HELP ME).
Never resign in the heat of the moment.
Should you resign, you lose most of your compensation rights as an employee and you make it much harder for your advocate to help you. If the situation is really stressing you, then it is best to go home sick, after telling your manager that's what you are doing. Go and see your doctor for a medical certificate and phone someone who can help you with your employment situation.
Keep an accurate diary of all the events that have happened. Start a file and write down the time, day and date, where you were, who you were with and who said or did what to whom. If at all possible, take home printouts of all communications regarding your issue. Contact us on 0800 HELP ME (0800 435 763) and we will talk to you, free of charge, to provide specific advice on how to best handle your particular set of circumstances. We will be able to give you sound advice over the phone and then, if appropriate, send you a free action plan by email.
Please don't hesitate to call us if you require other employment law advice that is not covered here.