Unfair dismissal
I have been fired or sacked, or I think I am about to be!
What can I do?
Irrespective of who you use to represent you or, even if you decide not to get representation, there are some basics that you need to do now in order to keep your options open for the future and to give you the best possible chance for success in what you are wanting to achieve. These basics are:
Don't Resign
If they ask you to resign, don't! I repeat, "Do Not Resign" under any circumstances until you have spoken to a representative first. By resigning, you are giving up most of your recources as an employee under the Employment Relations Act 2000.
Do Not Sign Anything
Do not sign any document that is given to you until you have received advice on that document. Some less honourable employers attempt to get employees to sign a document that takes away their right to raise a personal grievance. In some rare events these documents can be overturned, but not always. The best form of defence is not to sign them in the first place.
Write a Chronological Event Log
While it is still fresh in your mind, create a document, using bullet points, that maps out the events that have happened leading up to your incident. What you need is: the date, time, location, who you were with and what was said or done. It's a good idea to cross reference this with any other communications such as emails or letters sent or received. For example, a sample chronological list might look like:
12 Aug, 10:45 am. Had a heated discussion with Annette K over the number of sick days that I have taken. I had taken three days off (Mon, Tues & Wed) to look after the boys in my care being Don and Peter.
14 Aug, 2:00 pm. Received email from Phil G calling me to a disciplinary meeting, with a notice dated 13 Aug, alleging I have taken too many sick days.
15 Aug, 11:00 am. Had meeting with Phil G, Annette K & Trevor M. They quizzed me over how sick my boys Don and Peter actually were. I showed them the certificate from the doctor, however, they did not appear to listen to me. Trevor then brought up allegations of me bullying other employees which I denied. The meeting closed and they said they would come back to me later with the outcome.
16 Aug, 9:00 am. We all met again. Trevor M had not changed out of his cycling gear. The sight of this kind of put me off. Phil announced I was terminated effective now for taking too many sick days and bullying. I asked why is it ok for Trevor M to call others "Chicken"? Is that not bullying? Why is he not fired? Why was it ok for Helen C to sign the painting? Why was she not fired? I was told to hand back my company keys, phone and credit card and was escorted off the property.
Copies of Documents
Ensure you have copies of all your emails and other notices that are involved with the dismissal and any of the allegations mentioned during the dismissal process. You will need these at some stage in the future if you are going to raise a personal grievance.
Social Media
Do not mention anything about your situation on any form of social media and, if you have done so already, you need to delete it now. I have seen far too many employees shoot themselves in the foot with what they have posted on Facebook, Twitter and YouTube. The chances of your employer finding this information is very high and I can assure you that they will use it against you during the process to reduce any claim you have against them.
Mitigate your Loss
Employees, like employers, must act in good faith when it comes to employment matters. You need to start looking for a job straight away to mitigate your loss of wages. The Employment Relations Authority (ERA) have a benchmark of up to three months of lost wages that can be claimed by an employee who proves an unjustified dismissal. However, the ERA will not award this to you if you have spent that three months sitting on the sofa watching Parliament TV or at the beach catching the rays. Your new self appointed, full time job is finding a new job. You need to keep a record of all the jobs that you have applied for and interviews that you have attended.
With that said and done, what can you do now to help your situation? It all depends upon your situation. You can, or we can, help you challenge your employment termination. The process your employer has to go through has to be fair and reasonable, so far as following due process, to the extent that any failure to follow the process did not disadvantage you at all. Not only do they have to have a fair process, but the substantive reasons for the dismissal also have to be reasonable.
If you think the process was not 100% fair and reasonable and / or the substantive reason for firing you was not fair or reasonable, then you may have cause for a personal grievance. Every person's situation is different so the best advice we can give you is to call us for a no cost, obligation free talk on your particulars. We can be contacted on 0800 746 225 or danny.gelb@employmentlaw.net.nz
