There are two very distinct ways we help people involved with disciplinary meetings.  This depends on who we are assisting at the time.  We are in a unique situation whereby we effectively hunt with the hounds and run with the hares.  However we can only take one side in a disciplinary situation.  Whichever side engages us first then stops us being able to give advice to the other side as that would be a conflict of interest.

To find out how we can help you, click on the side you are below.

Employers

Employees

In order for you to be able to negotiate a realistic settlement for an employment problem, you need to know what your fall back position or plan B is, should you not be able to settle the matter consensually with either direct negotiation or a MBIE mediation. It is important to seek expert advice on this. The types of questions you want your employment lawyer / advocate to answer in writing for you are:

1. What percentage chance do you give me of winning this and what amount are we likely to be awarded?
2. Please can you provide me with an approximate timetable from when we decide to instigate proceedings, until we get the judge's decision and then, how long will it likely take to collect the money if we win?
3. What is your estimate of total fees for this plus the likely costs of disbursements, including filing and court costs?
4. What is the breakdown of hourly rates these fees are based on?
5. If we were to lose and costs were awarded against us, what is that amount likely to be?
6. If you were acting for the other side, what percentage chance would you give them of a win?

Most employment lawyers / advocates will not be happy about their client asking such questions. This is because it ties them down to a position they can't wriggle out of in future if they decide it has all become too hard and they either want to significantly change your percentage chance or, they want to charge you lots more. Asking these questions makes them think long and hard about the real merits of your situation and it puts them on notice that they will be measured by this position. You will be doing very well to get a straight answer out of any employment lawyer / advocate.  At the end of the day, you are the client and you have a right to know this type of information before you embark on the litigation bus.

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.

Time

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

Costs

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.

I Am An Employee And I Have Been Called To A Disciplinary Meeting. What Can I Do?

Information for Employers on Disciplinary Meetings can be found here.

You have certain rights under New Zealand law with regards to disciplinary meetings. These basic rights are that you are entitled to bring a support person with you, that you have reasonable notice of the meeting, you are told what the agenda for the meeting is and the likely consequences of the meeting. Most employers, but definitely not all of them, will follow the correct process as per the Employment Relations Act. The disciplinary meeting is an investigation into an alleged incident whereby the employer is giving you the opportunity to explain your version of events in order for you to defend yourself against such allegations. Once the meeting is at an end, the employer will consider what you expressed and they will make their decision. This is usually then communicated to the employee by way of a proposed outcome for the employee to comment on before the final decision is made.

There are decisions you can make at the meeting. These will vary depending on your particular circumstances and, in general, your choices are to either try and amend your ways so that your employer benefits from you being in their employment or, it may be better for you to decide that you no longer want to work there, for whatever reason. Should you wish to continue your employment, then you will need to discuss and agree on an action plan with your employer, in good faith, when they give you their decision at a subsequent meeting (provided of course that their decision is not to terminate your employment). Should they terminate your employment, then you do have legal rights depending on the circumstances.

Should you decide that you do not want to continue working for the employer during the disciplinary meeting, then you have various options. You can attempt to agree on an exit package that will result in a written agreement for you and the employer to sign. The employer will probably want to send this off to the Ministry of Business Innovation and Employment (MBIE) for mediator signing that makes that agreement full and final. In other words, once that agreement is signed by the mediator, then you can not lodge a personal grievance with the Employment Relations Authority. Should you not be able to come to an agreement, then your options are to either stay employed or resign. By resigning, you give up about 90% of your rights as an employee.  Raising a successful personal grievance against an employer after having resigned is extremely difficult.

We are a solutions focused organisation. Yes, the past does come into it however, we are future focused as that is what counts.  What is the best result moving forward for all concerned? This is where we will help you. Our aim is to help you negotiate a solution that gives a clear path forward. By doing this, we save everyone time and the possible costs of going to the Employment Relations Authority. Employers look at the total cost of all the components when trying to resolve an employment situation. The less they have to spend on their lawyers, their own time, and the Employment Relations Authority, the more they are likely to pay to settle or resolve the situation with you – or, alternatively, what they are prepared to pay for your further training.

We can help you at these meeting as your support person by protecting your rights as an employee and possibly maximising your position. Please call us on 0800 HELP ME (0800 435 763) to discuss the details or email us danny.gelb@employmentlaw.net.nz

So, You Have Been Offered A New Job And Your Employer Has Provided You With An Intended Employment Agreement.

Is the agreement fair?

Does it contain anything unusual?

Does it contain anything that could be nasty?

What are your obligations after you leave this job?

Does it contain any mistakes that could be to your advantage?

Unless you have expertise in this area, you will most probably be flying blind.  We can review your intended agreement and give you a written report that includes comments on:

Any terms you are particularly concerned with or don't understand.

Any unusual terms that it contains.

Any onerous or nasty clauses that are in the document.

Our fixed fee for completing this is $595 GST Incl, provided that it is a regular employment agreement that is about 12 or so pages in size.

To get the process moving from here, send us a soft copy of your intended employment agreement and details of any terms that you are concerned with, to danny.gelb@employmentlaw.net.nz