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Before you scan down this list it might be easier to use the search box top right of your screen!

I am an employee and I have been called to a disciplinary meeting. What can I do?

Employers Guide to Disciplinary Meetings

Do I need Representation at Mediation?

Is my 90 Day Trial clause valid?

I have been fired / sacked / terminated from my employment. What can I do?

What is the Minimum Wage?

Bullying and Harassment in the Workplace

Restraint of Trade clauses in Employment Agreements

Non Solicitation clauses in Employment Agreements

I have been made redundant. What can I do?

Redundancy & Restructuring. What happens when I get it wrong?

What is the process for taking a Personal Grievance?

How to Fire an Employee

Calderbank Offers

Am I entitled to holidays over Christmas?

My Employer keeps rolling me over on Fixed Term contracts. Can they do this?

What will the Employment Relations Authority award me if I will my case?

There are issues in the work place that I would like addressed to improve a working relationship or working environment.

How to Negotiate at a MBIE Mediation.

Can I run my own personal grievance process without having to pay someone to represent me?

Personal Grievance Avoidance Tips

What are the benefits of resolving my employment dispute?

Is mediation really a confidential process?

What is the difference between Mediation and the Employment Relations Authority?

Questions to ask an Employment Lawyer / Advocate prior to engaging them.

I am buying a business and want to include 90 day trial period clauses for the employees. Can I do this?

Your question not listed here? Call us on 0800 HELP ME or send me an email danny.gelb@employmentlaw.net.nz

When something happens at work you may feel like you're alone.  However, it has also happened to thousands of others before you and we are here to help.

If something has just happened to you at work, and you need immediate assistance, call me 24/7 for free now, even from your mobile phone, on 0800 HELP ME (0800 4357 63). Should I be unavailable due to being in a mediation or an Employment Relations Authority hearing, then leave a quick message and I will call you back at my next available opportunity. This will be either during my next break or as soon as I get your message. Should you prefer to text me, then send your text to 021 77 1919.

Read our reviews on our Trade Me services page. (A new window will open)

We help many employees that find themselves in difficult situations such as:

  • Wrongful termination, being sacked or fired
  • Being called to a disciplinary meeting
  • Being forced to resign from work (constructive dismissal) and wanting to do something about it
  • Wrongful written warning
  • Needing help with a personal grievance
  • Needing help with redundancy issues.
  • Wanting to know their rights as an employee
  • Workplace bullying or harassment.

New Zealand has very strong employment law legislation. This employment law is unique to our country and many international organisations and companies struggle with it. The predominant pieces of legislation for our employment law are:

(new window will open from NZ Legislation site)

The Employment Relations Act 2000

Holidays Act 2003

Parental Leave and Employment Protection Act 1987

Minimum Wage Act 1983

Minimum Wage Order 2017

Wages Protection Act 1983

Equal Pay Act 1972

Health and Safety at Work Act 2015

Privacy Act 1993

Volunteers Employment Protection Act 1973

Criminal Records Clean Slate Act 2004

Smoke-free Environments Act 1990

Mediation and facilitation can be used to help employees and employers in many situations when they have issues with employment law or a dispute or friction in the workplace. Employment law situations can get highly emotive as we are dealing with people's livelihoods. We can act in one of two capacities for employment law situations or disputes in the workplace. Firstly, we can act as the advocate for you, i.e. you appoint us as your support person or representative and we solely represent your best interests with the issues that you have. Secondly, you and employer jointly appoint us and we come in as the neutral party helping both sides come to a consensual agreement over the problem.

Our FAQ page has some typical employment law scenarios that people find themselves in, and what they can possibly do to help resolve the situation to their best advantage.

We have put together a printer friendly publication that explains the basics of employee rights with regards to employment law.

Alternatively, the web page version of employee rights with regards to employment law is here.

This brochure covers

What are my employment rights?
Personal grievances
Disciplinary meetings
Unjustified terminations or warnings
Constructive dismissal
Help! What can I do right now?

Should you have an employment issue not covered above, then please don't hesitate to call us on 0800 HELP ME (0800 4357 63) or email danny.gelb@employmentlaw.net.nz

A Calderbank offer (otherwise known as a "Without Prejudice Save as to Costs") is an offer to settle a dispute, putting the other side on notice that, if the dispute goes before any court and the outcome is less favourable to the other side compared to the Calderbank Offer being made, then the side making the offer is entitled to more of their costs being recovered. This is because, if the other side had accepted the offer, then they would have been better off and neither side would have had to spend money taking the matter to court.

The history behind the Calderbank offer goes back to an English case in 1975 between Mr and Mrs Calderbank. It was summed up nicely by the court in a case called Martel:

It was in a legislative vacuum that the English Court of Appeal made its ruling in Calderbank. Mrs. Calderbank was seeking a declaration under the Married Women's Property Act, 1882, not recovery of debt or damages. Before trial, she swore an affidavit declaring herself willing to accept a certain result in the litigation going on between herself and Mr. Calderbank. Mr. Calderbank did not agree and the case went to trial.

The judgment was less favourable to him than what Mrs. Calderbank had been willing to give him. It was held that Mrs. Calderbank was entitled to her costs, as from the date on which she made her willingness to settle known. The Court also suggested that a letter like the one used in this case by the plaintiff should sound in costs. What has become known as a Calderbank letter developed into a recognised procedure to set up an award of costs based on a willingness to settle.

In simple terms, when you make or reject a Calderbank offer, you are taking an educated bet. In terms of employment matters, when an employee makes a Calderbank offer, they are betting that the amount the ERA will award will be more than the employee's offer amount. If the employee is right, then they can apply to have more of their costs paid by the employer. However, should an employer make a Calderbank offer, then they are betting that the ERA will award the employee less than the amount they are offering.

Should the employer be right, then, even though the employee may have won the battle of that case, the employee may actually lose the war as they can have costs awarded against them. This is because the employee would have been better off if they had accepted the employer's offer and the employer would not have had to spend money on defending the claim.

Accordingly, Calderbank offers should not be made or rejected prior to taking employment law advice, as the outcome can have major implications on both sides. Do contact us with further queries you may have on this matter.

We get many calls from employees complaining that they are being bullied or harassed within the workplace. This is not nice for anyone to endure. In general, the world is not a nice place. You can't stop this from occurring but you can take steps to reduce its impact, mitigate its effects, and remove it from the work place. Quite often, the bully is a manager or superior in the workplace who is using this type of behaviour to assert their dominance. It is usually due to their own insecurities. This can be harder to fix although not impossible.

However, is the situation bullying and or harassment?  It is not uncommon for someone not liking what their manager is doing / telling them to state that they feel that they are being bullied.  There are four factors that are generally identified in bullying situations.  They are: -

  1. The Action is deliberate, that is the bully is intending to harm the victim.
  2. The bully uses the power that they have in the employment relationship over the victim.
  3. The actions are repeated over time and are not that of a one off situation.
  4. The behaviour of the bully can cause harm on the victim.

Many actions can appear to be that of a bullying nature but in reality the general rule of thumb is that it is not bullying if: -

  1. The action is a one off incident.
  2. It is more aligned with a difference of opinion.
  3. A person does not like you or it is an isolated act of rejection at work.
  4. It is a one off act of meanness or spite.
  5. The use of sexist or racist terms that are not intended to cause harm.

The most common statement made to us regarding this topic is along the lines of:

I want to leave now and raise a personal grievance for constructive dismissal. Can I do this?

Similar to you wanting to go to your local lotto shop to purchase the winning ticket, there is nothing stopping you from doing it. However, your chances of success are generally pretty remote. Most people don't like hearing this news, but it is the reality of the situation, unless you have had advice prior.

So, what can I do if I am feeling bullied or harassed?

The first decision to make is whether you want to fix the problem, or you want to take steps to remove yourself from it. If you are in a large organisation and the perpetrator is someone on the same or similar level to you, then there is a good chance that the problem can be fixed. However, if you are working for a smaller organisation and the perpetrator is the business owner or a member of their family, then maybe the best course of action is to look for alternative employment and resign, once this has been secured. They may not be right, but they are the boss after all.

There are various steps you can take to attempt to fix the problem. The process below is designed so that, at the end of it, if the problem is not resolved, you could have good grounds for a personal grievance claim against your employer for bullying and/or harassment. It is worth pointing out at this stage that you cannot take a legal action (personal grievance) against another employee of your employer. You can only take legal action against your employer.

Step 1. Line In The Sand

If the incident of bullying or harassment is any older than two weeks then, generally, it's too late to do anything effective about it. If it really deserved action then you would have said something at the time, not two weeks (or longer) down the track.

Step 2. Documentation

Immediately after the incident that you consider was bullying or harassment, you need to document exactly what has happened, including:

  • Date
  • Time
  • Location
  • Who else was around that saw or heard this
  • What was said or done
  • How it made you feel

Having documented the incident, you then need to write this into a communication to your manager and or HR representative. This communication also needs to contain a few other key ingredients. If these ingredients are not all present, then you reduce your chances of being successful with a personal grievance should it go as far as that. These ingredients are:

  • That you consider these actions of [NAME] to be bullying or harassment
  • You do not like it and you wish for it to stop as it is making you feel unsafe
  • It is not fair or reasonable for you to have to put up with such actions within the workplace
  • If it does not stop, then you may have to be forced to go and find alternate employment

A typical email to your manager or HR representative could look like:

Hello Andy,

Yesterday, 23 August 2014, I was at the photocopier in the level two open plan office making copies of the Nutrition Report, which I am due to present at the end of the month, when Monique came up to me. She said that I was wasting my time copying my report because she had read the draft and it was a pathetic report full of errors that looked like a 10 year old had written it.

I was devastated to hear these words as I have put a great deal of time into my report and I don't think her comments were fair. I consider this to be bullying behaviour, especially as, when she said it, both Steve and Kirsten were at their desks and would have heard what she said to me. 

Her comments made me feel physically sick and I found it hard to concentrate on my work for the rest of the day. I do not like this sort of behaviour and wish for it not to happen again as it makes me feel unsafe and vulnerable within the workplace. I don't think that it is either fair or reasonable, that I should have to put up with the likes of this. I really enjoy my job but, if this sort of behaviour continues, then I may be forced to seek alternative employment elsewhere.

Please can you come back to me with what actions you are going to take to stop a reoccurrence of such an incident.



Step 3. Follow Up

Make sure you keep a copy of this communication at home and, if you don't hear back from your employer, then send another email 10 days later asking what is happening about it. Again, keep copies of all communications regarding this at home.

Step 4. Repeat The Above

Every time an incident happens, you need to repeat the above. Once you get a total of about 6 incidents over a period of say, at least 6 weeks, and nothing has been done about it, then you may have a valid constructive dismissal claim. You will need your written copies of all the incidents as your verbal recollection as evidence will, most probably, not stand up in court.

Step 5. Taking Legal Action

Before starting any legal action or resigning, it is best to get professional advice to make sure you have a valid case before you embark on a path of no return.

We are often asked by employees, that want to take a matter to the Employment Relations Authority (ERA), what are they likely to be awarded if they win.

The formula is rather simple for most situations, but not for all. Please use this as a guide only. Particulars of your situation may be different.

So, let's assume that you are a typical employee and that you have an outright win in the ERA. Your award will most likely be:

Contractual Entitlements

Should your employer not have paid you for any time that you have worked (and you are credible in what you claim is the time you have worked and not been paid for), then this amount should be awarded to you. This includes any bonuses or commissions that you can prove are owing. To prove this, you need to be able to show the written agreement for the bonus or commission, plus evidence that you are entitled to it. Any amount awarded is subject to usual income tax.

Statutory Entitlements

Should your employer not have paid you out for your accrued holiday pay or leave entitlements then, as long as you are credible in what you claim, this should be awarded to you. Any amount awarded is subject to usual income tax.

Lost Wages

Lost wages payments are awarded as the lesser of 13 weeks' pay or the actual time you were out of work between jobs. So if you are only out of work for five weeks then you can only get an award of five weeks.  Should you be out of work for five months then you are still only likely to be awarded the 13 weeks of lost wages.

However, you have an obligation to mitigate your loss by trying to find alternative employment. In other words, if you spend the next 13 weeks at home watching The Simpsons and Judge Judy on Sky TV then you will not be awarded any lost wages. You need to be able to prove to the ERA that you have tried to find work by producing copies of emails of job applications, interviews etc. One or two job applications will not cut it either. Effectively, your full time occupation, once you have lost your job, is finding a new job. If you can't demonstrate this, then don't expect the ERA to award you any lost wages. Any lost wages awarded are subject to usual income tax.

Compensation For Hurt And Humiliation

This figure differs widely for many people depending on what the impact of an unjust termination has had on them. However, typically, this figure is around the $5,000 to $15,000 mark. This amount is not considered as income, and as such, no tax is payable on this payment. It has been noticed in the past few months to June 2021, that this amount is now steadily rising in the Employment Court and it appears they they are typically awarding up to $20,000.  The Employment Relations Authority tends to take time to catch up to the values of the Employment Court.  The average the Authority is awarding is in the vicinity of the $12,000 to $18,000.

Contribution To Costs

Even if your employer is completely slated by the ERA, the ERA will generally only award you a contribution to your costs and not all of your costs. Currently, the daily tariff they are awarding is an amount based on $4,500 for the first day of the Authority hearing and a further $3,500 for every subsequent day. So, if your matter in the ERA only takes a half-day, then the costs awarded will likely be $2,250. Alternatively, if your matter takes two days to hear, then the figure will likely be $8,000. There is, however, a complication which can radically change the amount of costs awarded. Should either the employee or employer make what is known as a "Calderbank Offer" to the other side, prior to this process commencing, and what is eventually awarded is less favourable than the "Calderbank Offer" for the other side, then the costs can be wildly different.

However, similar to how some people portray their financial position to the NBR so that they can get on the Rich List, there is another side to this equation, which is the cost in taking a matter through the ERA process. The wheels of justice turn slowly. They are not cheap to rotate and sometimes they don't rotate in your direction of choice.


Typically it can take 12-24 months to get through this process and receive a written decision from the ERA on your matter.


The actual costs vary depending on who you use and how complicated your matter is. We find that our typical costs, for an employee going though this process, are between $10,000 to $15,000 plus GST. In order for you to have a better idea of the likely costs for your situation, please contact us for a more detailed estimate.

Employee Contribution

The ERA must take into consideration the conduct of the employee in the events leading up to the termination. The ERA will ask itself the question, "Has the Employee contributed in any way towards this termination, by their actions?" If they decide that you have, then they will water down your awards by a percentage that they determine is fair and reasonable in relation to how they have assessed your contribution to the situation.

ERA Rules In Favour Of Your Employer

Remember that there are no guarantees when you go to court.  Should this happen, then you will not be awarded any of the four items as described at the top of this page. However, it could be even worse. The ERA may (again depending on your situation) award costs in favour of your employer. Now, the item above (Contribution to Costs) applies, but in favour of your employer and not yourself. So, not only have you had to pay for your representation, you now need to pay for some of your employer's costs for representation as well.

For the four reasons above, we have an in-depth conversation with our clients before proceeding to the ERA. The cards need to be strongly stacked in your favour before we will proceed. Because of this policy of ours, we have a very high winning rate for cases that has been taken to the ERA on behalf of our employee clients. As of February 2021 it was sitting at just over a 78% success rate when representing the employee.  Personally, I don't like losing. This is a stance that has benefited all of my Employee clients we have represented before the ERA.  The actual costs to take a matter to the ERA will always be greater than the costs that they award.  It case is different and you need to talk to us directly to get an accurate estimate of what the likely costs would be for your case.

We Are Regularly Asked Questions Such As:

My employer keeps 'rolling over' my employment agreement on a 6 month fixed term. I am scared that, if I put one foot out of place, they will not renew my employment agreement and I will be out of a job. Can they do this?

Many fixed term agreements are not valid. Under Section 66 of the Employment Relations Act 2000, the employer must have a specific reason for a fixed term contract.  An example of a valid, specific reason would be if your employer won a tender to sell ice creams at Mission Bay from 1 December through to 28 February and they wanted to employ you for that three month fixed term period.

The employer must:

  1. Have genuine reasons, based on reasonable grounds, for specifying that the employment of the employee is to end in this way.
  2. Advise the employee of when or how his or her employment will end and the reasons for his or her employment ending in this way.

With regards to item 1 above, these reasons must not:

  1. exclude or limit the rights of the employee under the Act
  2. be used to establish the suitability of the employee for permanent employment
  3. exclude or limit the rights of an employee under the Holidays Act 2003.

For a fixed term employment agreement to be valid (i.e. the employer can rely upon it for the termination of the employee's employment at the expiry of the fixed term) the employment agreement must specify in writing:

  1. the way in which the employment will end
  2. the reasons for ending the employment in that way.

Should a fixed term employment agreement be determined as not valid because it does not comply with what I have just stated, then it is considered a normal, permanent full time agreement. You have, therefore, the same protection as all other employees under New Zealand legislation. The only difference is that the employer can't use the fixed term part of the agreement as a defence against a personal grievance raised by an employee for an unjust termination.

Very few of the fixed term agreements that we see are valid. If you have any doubt call us on 0800 HELP ME (0800 435 763) or email us.

Generally, these clauses are enforceable when contained in a signed employment agreement. The object of these non-solicitation clauses is to protect the former employer from the former employee using information and / or knowledge gained during their employment that can be used to the detriment of the former employer. Although this is similar, it is important not to confuse Non Solicitation clauses with Restraint of Trade clauses.

Non Solicitation is usually broken down in to two distinct categories. The first details how the former employee cannot attempt to solicit or entice other employees, of the former employer, to move away from their current jobs with that employer. The second area these clauses cover is protection over the current clients and customers of the former employer that the former employee has had dealings with. Non Solicitation clauses are usually defined for a set period of a number of months. The theory behind these clauses is to stop you taking with you all your current customers and clients when you move jobs. The period specified only needs to be long enough to give the former employer an opportunity to establish new relationships with these customers and clients with another employee of theirs.

However, if these clauses become to overreaching then they may not be enforceable or, our courts may choose to amend them. Overreaching includes being too long in duration or, if the definition of who you are not allowed to solicit is too wide. For example, if non solicitation specified all the company's customers or clients, as opposed to just the customers and clients that you had dealings with, then the clause can be viewed as a punishment as opposed to protection of the former employer. Likewise, if the clause contained suppliers as well as customers and clients, then I would not be surprised if our courts amended the clause to remove suppliers as, generally, this would not affect the former employer in any material way.

Contact us should you wish to discuss whether you can enforce your non solicitation on a former employee or if your former employer is trying to enforce a non solicitation upon you that you do not think is fair or reasonable.

There is a fine line between what is contracted, what is legal, and what is enforceable. Even though each situation is different, there are overriding themes in employment law that allow us to predict, reasonably well, what the Employment Relations Authority and / or the Employment Court would decide in such matters. Therefore, it is often better to agree to an amended set of restrictions than go through the expense of a court action.

What is written in a signed employment agreement does not always directly translate to what is legally enforceable. For a clause in an employment agreement to be enforceable, it first needs to be legal. I am struggling to recall the last time I saw an employment agreement that contained a "Restraint of Trade" clause that I thought was fully legal and enforceable in regards to how it was written. It is important not to get "Restraint of Trade" clauses mixed up with Non Solicitation clauses. Take a look at my Non Solicitation page for more information.

The essential elements of a "Restraint of Trade" clause are:

Geographical Area

Usually defined as a radius of so many kilometres from a known geographical point. Any other type of definition will have either too much ambiguity. For example, a definition such as 'Auckland City'. Where does Auckland City start and finish? Is Manukau City considered to be part of Auckland City? It can be argued both ways. Alternately, if the geographic region is defined as "The North Island" then odds on, the courts would determine that the geographical region is unreasonably large.

Period Of Time

This is the duration that the Restraint of Trade clause is operative. The date of the termination of the employment relationship is usually the starting point for the time period of the restraint.

Details Of The Activities Not Permitted To Be Carried Out

Typically, a 'catch-all' sentence or two details all in sundry as to what the employee is prohibited from doing within the geographical area for the period of time.

Our courts have ruled that the determining factor, in deciding if a Restraint of Trade clause is enforceable or not, is whether the employer's need for protection has been threatened, as opposed to punishing the employee. For example, say Joe is employed at a local fish and chip shop and he has signed an employment agreement that contains a restraint of trade clause. He resigns and goes and gets a job the following week at the fish and chip shop at the other end of the same block of shops. Is the restraint of trade clause enforceable?

Our opinion is that it is not. Typically, a fish and chip worker would not have a proprietary skill that would cause a mass movement of patrons from one greasy take-a-way shop to the other. Therefore, there is no interest that the first fish and chip shop can get protection of. If the restraint was enforced, it would unreasonably prohibit Joe from earning a living.

However, let's say Sally the hairdresser is employed by Harry's Hairy Salon, with a three month restraint of trade clause for the geographical region of 5 km from the place of employment. This would most probably be enforceable as hairdressers typically have a relationship with the people who go to them for their haircuts. Should Sally move to the salon just down the road, then there is a very likely chance that the people she developed relationships with whilst employed by Harry's Hairy Salon would follow Sally to the new salon. The three month restraint of trade would give Harry's Hairy Salon the opportunity to establish new relationships with those people, with their other hairdressers. Therefore, the restraint is a real protection to Harry's Hairy Salon as opposed to a punishment to Sally. If Harry was wise, he would also have a Non Solicitation clause in Sally's employment agreement.

To sum up, Restraint of Trade clauses are generally like a dog whose bark is bigger than its bite. To employees not in the know, these clauses can make them think twice prior to jumping ship. However, if they do jump, it is the exception rather than the rule, that these restraints will be enforceable.

However, in some situations, the former employer sends out what I call a "Monsters Inc" letter (i.e a letter that can appear to be very scary but, for those in the know, it is all just a theatrical act). The first line of defence, in these situations, is to let the former employer know that you are not scared by their communication and that you know your rights under New Zealand employment law. This can be done by either a letter from us direct to them or, a letter that appears to have come from you that we have drafted.

Contact us should you wish to discuss if you can enforce your restraint on a former employee or, if your former employer is trying to enforce a restraint upon you that you do not think is fair or reasonable.

Legislation was introduced by the National Party to enable employers to take on new employees in a more risk free environment. The idea behind this piece of legislation is that this should encourage employers to take on more employees. It means that, for whatever reason should the employment relationship not work out within the first 90 days, the employer can terminate the employment relationship. This can be done without the risk of the employee raising a personal grievance and then dragging the employer through the resolution process that can be very time consuming and costly.

There are very strict parameters around this piece of legislation in order for it to be used for this purpose and not just as a mechanism to aid the employer to chop and change employees at will. There has now been three significant cases before the employment court that have defined the use of this clause even further. The ramifications of this is that there are many employers and employees that believe their employment agreement is subject to a 90 day trial period, when this clause within their employment agreement would not stand up as valid in our courts. To the horror of employers and to the delight of employees, this is not normally discovered until there is an employment relationship problem. An issue for employers is that it is impossible to retrospectively fix any defects in their 90 day trial period clause should they discover that it is currently invalid.

Let's now look at this clause in two ways. Firstly, what is needed to make it valid and secondly, common reasons that make it invalid.

For A 90 Day Trial Clause To Be Valid:

  1. The employee must not have worked for the employer previously.
  2. It must be communicated to the employee in writing that their employment is subject to a 90 day trial period before the employee accepts the offer of employment, irrespective of that acceptance being verbal or written.
  3. The employee is advised in writing that they have the right to seek independent advice and they are given adequate time to seek such advice.
  4. The written clause in the employment agreement must include the specific wording as per section 67A of the Employment Relations Act 2000.
  5. The agreement needs to be signed by both parties or the employer needs to be able to show that they have taken multiple significant steps to get the employee to sign the agreement prior to work commencing.
  6. Notice of termination needs to be given to the employee within the 90 days. However, it does not matter if the final day of this notice period is outside the 90 days.

Common Reasons Why A 90 Day Trial Clause Has Been Proved Invalid:

  1. The employee had worked for the employer previously.
  2. The employee was only informed in writing about the 90 day trial clause being included in their employment terms and conditions after they accepted the verbal or written offer of employment.
  3. The wording in the written employment agreement does not meet the requirements of section 67A of the Employment Relations Act 2000.
  4. The employee has never been given a written employment agreement.
  5. The employer did not attempt to get the employee to sign the employment agreement prior to the employment commencing or within a short period of time from the employment commencing.
  6. The employer has informed the employee that they are extending the trial period beyond the initial 90 days.

For employers, it is best practice to get advice on the use of this clause.

For employees that are terminated under this clause, it is best to get advice as to the validity of the clause in your particular situation.

For any clarification of the issues around the 90 day trial legislation, please don't hesitate to call me on 0800 HELP ME (0800 435 763) or drop me an email to danny.gelb@employmentlaw.net.nz

Here You Will Find Information On

What are my employment rights?
Personal grievances
Disciplinary meetings
Unjustified terminations or warnings
Constructive dismissal
Help! What can I do right now?

What Are My Employment Rights?

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.

Personal Grievances

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

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:

  1. That it is a disciplinary meeting
  2. The time and date of the meeting
  3. The allegations they are making against you
  4. The possible outcomes of the meeting
  5. 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:

  1. No further action required
  2. A verbal warning
  3. A written warning
  4. Termination of your employment.

Unjustified Termination Or Warnings

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.

Constructive Dismissal

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: 

  1. Stopped paying the employee
  2. Forced major changes to the employee's working terms and conditions without the agreement of the employee
  3. Informed the employee that if they do not resign, their employment will be terminated.

Help! What Can I Do Right Now?

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.

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