Sometimes we have clients who are accused of doing bad things: stealing, threatening to kill another employee, harassment, ongoing serious performance issues, or any number of things. Sometimes the employee has done what they are accused of, other times they vehemently deny it but the evidence, or the employer’s attitude, is against them. The employee will have been called to a disciplinary meeting and there is a  very real possibility that they will be dismissed at that meeting. You may wonder if there is any point in being represented if you are in this kind of situation. The answer is a clear yes.

We have never (so far) been to such an employment meeting where an employer has refused to allow the employee to resign instead of being dismissed. Nor have we ever (so far) been to such an employment meeting and the employer has refused to make a payout of some kind (in some cases this has been modest, in other cases it has been surprisingly generous).

The key is that we must be with you at the meeting (or that we are instructed in time so that we can communicate with the employer before the meeting starts). Because we know what to look for, and because we offer a professional and businesslike way to resolve the differences between the parties, the employer will almost always offer more than they are legally obliged to. If you go to the meeting by yourself and then decide to try to do something after the meeting your situation is likely to be much more difficult. At that stage the employer has no incentive to convert a dismissal into a resignation or to offer you a payout. It is critical that you have representation at (or before) the meeting if you have a weak case. Of course, it is also important to be represented if you have a medium to strong case, but it is more important the weaker your case is.

When negotiating an exit package two of the most important things to keep in mind are:

1 - What’s your alternative?

2 – What will happen if you don’t accept?

If you’re offered $4,000 to leave, this may not sound like much. If realistically you can hope to achieve $15,000, an offer of $4,000 is not a good solution and you probably shouldn’t accept it. If, however, your alternative is a dismissal with no payout because you have done something wrong, or because you have had several warnings about your performance over the last few weeks and the employer’s procedural mistakes are minor, the $4,000 (and being allowed to resign instead of being dismissed), might be a good offer.

You also have to ask what will happen if you don’t accept. If you are offered $4,000, but you have a good case and you can expect to get $15,000, you are on strong grounds to take the case to an urgent mediation or to the Employment Relations Authority. If however, you have done something wrong and you turn the settlement offer down, you may find yourself with a dismissal on your employment record. This will make it hard to get a new job. If you take the case further, you may not even get the $4,000 that the employer originally offered you.

Sometimes we find that the “best alternative” changes during the meeting as we see the evidence, assess the strengths of both the employer’s and the employee’s case, and weigh up the pros and cons of all the available alternatives.

It’s often hard for an employee to understand the strengths or weaknesses of their own case, so it’s essential to have someone experienced acting for you who can advise you accurately. 

One of the best parts of our job is receiving wonderful feedback from clients. Today we received this from a client who  we had been working with for a few weeks in order to obtain the outcome that they wanted:

""I would like to thank you so much for all your help with this matter.  I really appreciate everything.  You took a situation that was impossible for me to deal with & gave me the advice & clarity to get a satisfactory resolution.  Not to mention, you're handling of it took all the stress off me."


A couple of weeks ago we assisted a young person to leave a toxic work environment with a payout. This is an email from that person's parents:


Many thanks to you for your support of [name] in his recent case with [employer’s name].

As parents, we were always hopeful of a just outcome. We were encouraged by your initial opinion that he had a 'good case'. In turn, we were able to buoy [name] in his hope for a justified, reasonable and equitable outcome. 

You should be aware that [name] initially contacted another firm to help him in this matter and he quickly realised that they did not offer him the confidence that he needed in this matter. We searched options for him and suggested he contact you mainly because of your professional and informative web site but, also, because of your 'no win no fee' option. [Name] was also impressed by your initial response to his 'phone call.

His feedback to us was that he felt very confident with your presence and advice at the mediation meeting.

You might be pleased to know that [name’s] confidence and aspirations have improved dramatically in the last three days since resolving his case. He is already confidently planning his future. (something that was inconceivable a week or so ago). The increase in his self esteem and confidence, following the help you provided at the mediation meeting, must not be underestimated.  He now has a much better understanding of his worth and abilities  and , he will be a better person for that experience. Thank you on his behalf.

We hope you will keep up the good work to benefit all those employees who, either don't understand their rights or, don't realise how badly some employers will exploit them.

Best wishes,...

We welcome the investigation into employers paying their migrant employees as little as $3 an hour. 

More also needs to be done about the employers, some of them large and well known, who take thousands of dollars in bribes in exchange for “employing” immigrants so that their visa conditions are fulfilled. The affected migrant workers effectively pay for their own “wages”.  The exploitation of vulnerable immigrant workers through abusive pay rates, and taking bribes, must stop. If migrant workers complain, they risk losing the thousands they have paid, their cultural network, their job, and their right to live in New Zealand. These unfair practices also victimise those who are legitimately able to work in New Zealand as their opportunity to work is removed by the exploitation of migrants. 

Much more needs to be done to deal with these issues.

Many employees have 90 day trial provisions in their employment agreements. We don’t like them, but often employees have no choice but to accept a trial period if they want the job.

We have recently seen situations where long standing employees are being asked to sign revised employment agreements containing 90 day trial provisions. Employers can’t do this. The 90 days starts from the beginning of your employment – and not after you have already worked for them for longer than 90 days. If you are asked to sign such an agreement please contact us.

If you are a new employee and you are dismissed during the trial period, you can’t generally sue the employer for an unjustified dismissal, however, the law does allow you to sue them for other things, including unjustified disadvantage. This means that if you are bullied, the employer changes your work or working conditions without your consent, you are subjected to sexual or racial harassment, or any number of other unpleasant things, that you can still seek justice if you are dismissed. If something bad happens to you within the trial period, you don’t need to just walk away if you are dismissed. Please talk to us as we can help.

If things are bad at work, or if you’re being pressured to leave, don’t just hand in your notice.  If you just hand in your notice your leverage decreases enormously. In most cases what you should do is raise a personal grievance and seek a negotiated exit first, in exchange for handing in your notice (once everything is agreed to your satisfaction). It is important that this process is handled correctly in order to maximise the likelihood of a good exit package and so that some good will is retained in case you need to rely on your employer for references.

Some employees worry that raising a personal grievance sounds confrontational. It doesn’t have to be if it is handled correctly and professionally, however, by raising a personal grievance you increase your chances of a quick settlement and a good payout.

If you’re ready to quit, please talk to us first.

Even Al Qaeda has employment agreements. Not only that, some of the terms are very generous: Married men receive a week’s holiday every three weeks. Employees receive a free round trip to their country of origin every year. The agreement even contains conflict resolution provisions.

There are many New Zealand employers who fail to comply with their legal obligation to provide their employees with employment agreements, who don’t understand the value of having happy and engaged employees, and who provide their employees with no effective means to resolve issues in the workplace.

If even Al Qaeda can get employment relations right, there’s no excuse.

A recent Weekend Herald article entitled, “You’re fired…but wait, there’s more,” quoted Employment Law Help extensively.

The article discussed cases like Gostmann v Independent Refrigeration and Electrical Ltd where a bogus refrigeration engineer falsified his work history, wrecked customer equipment, and nearly killed a fellow worker. The employer sacked Mr. Gostmann. Despite the very significant issues with the employee, the Employment Relations Authority awarded a large payment to the employee and it even criticised the employer for failing to reference check the employee.

In the case of Mr. X v Independent Liquor, the employee was dismissed for drunken, abusive behaviour at a function attend by Prime Minister John Key. Not only did the employee succeed in obtaining a large payout at the Employment Relations Authority, he had his name suppressed.

To most people these results seem unfair.

Why did the employees win? In both cases there were major procedural errors with the way that the employer handled the employee.

In the Gostmann case, the employee was given the choice to resign or be dismissed. He was dismissed that day. There was a gross procedural failure on the part of the employer and the employer admitted this. The employer failed to consider any of the four factors under section 103A(3): a proper investigation of the issues, raising the concerns with the employee, giving the employee an opportunity to respond, and, considering any explanations made by the employee – before making the decision to dismiss.

In the Mr. X case, the employee was initially suspended, however, the company failed to give the employee details or to consult with him. Even in very serious cases an employee has the right to know what they are being accused of and to have their views considered (even if the views of the employee are then rejected by the employer). When it came to the dismissal, the employee was not given the opportunity to put his case to the decision maker.

What these cases demonstrate is that, even in the most serious black and white instances of bad employee behaviour, the employer must follow the required procedure. If the employer fails to do so, the employee is likely to win a personal grievance claim. Following the correct procedure doesn’t need to be difficult or take long. We believe that if the correct procedure had been followed in the Gostmann and Mr. X cases that the employees could still have been dismissed the same day, but without the risk to the employer.

If we were representing employer clients with employees like Gostmann or Mr. X, we would have taken a different approach. We would have argued that the substantive failings of the employee justified an immediate dismissal as the failures were so serious that the employee had broken the relationship of trust and confidence. In both cases we would also have argued for a much larger contribution to be taken into account. Contribution can be found to be as much as 100% which would mean that, even if the employee won the case on the grounds of the correct procedure not being followed, because their behaviour was sufficiently bad, the amount awarded to them is reduced. If it is reduced by 100% they get nothing. As an example, in the case of Tai v Robinson t/a Coronation Lodge Rest Home 17/3/04, false pre employment declarations were a factor in a contribution of 100% being applied, resulting in the award being reduced to zero. This case had some similarities to the Gostmann case.

We can understand employers’ feelings of frustration when they hear of decisions like this; however, it is important that there are ground rules for the correct procedure that must be followed. If we didn’t have these ground rules many good employees would be dismissed or disadvantaged by bad employers, and they might then have no ability to challenge that decision.

If you are an employee in a situation like Mr. Gostmann, where really bad things have happened, we believe that your best outcome is likely to be a resolution at mediation or by prior direct negotiation. That way the outcome and your actions can be kept confidential. You may also be able to have your dismissal redefined as a resignation, achieve some compensation, and walk away so you can start afresh. Even though Mr. Gostmann took his case to the ERA and won a financial payout, the nature of his actions has caused a large amount of negative  publicity for him. While Mr. Gostmann may have been temporarily better off, it is likely to be difficult for him to find new employment and in that situation it wouldn’t be long before the value of the payout was eaten up by a prolonged period of unemployment. We doubt if Mr. Gostmann is really the winner from having taken his case to the public forum that is the Employment Relations Authority.

If you are an employee who has been dismissed or disadvantaged through little, or no, fault of your own, our comments about the ERA don’t apply and you should not need to fear publicity, however, what is important is that your case is fully analysed at the start so that the overall tactics and strategy adopted are directed at achieving an optimal outcome for you, based on the facts of the case and the legal realities.

Please don’t hesitate to contact us if you are an employer or an employee and you have a case or any questions.

If you are being discriminated against, or if you have been the victim of racial or sexual harassment, at work, you have the choice of taking your complaint to the Human Rights Commission or going through an employment process.

If you go through an employment process, a personal grievance will usually be raised and the issue can be resolved by direct negotiation, at mediation, or at the Employment Relations Authority.

Sometimes people ask which is the best way to progress their case – through the Human Rights Commission or through the employment disputes processes. We can assist you with either, however, we believe that, in most cases, the employment process is by far the best way to take your case forward. Taking your case forward through an employment process is likely to be far faster and cheaper than going to the Human Rights Commission. You will retain control of the case and you have the right of free, confidential and speedy access to the Mediation Service, an excellent resource provided by the government. If you are still employed, we can often get you a mediation within 1-2 weeks.

The same employment processes also exist to protect employees who have been unfairly accused of harassment or discrimination and who may have been unjustifiably dismissed or disadvantaged as a result.

Please contact us if you have any issues or questions.

A no win no fee arrangement has many advantages for an employee. To read about the benefits in detail please click here.