On her second day of work an employee was fired when she received a text from her boss advising her, "no need to come into Salad Bowl tomorrow. We'll be in touch."  The employee was awarded over $6,000. If you have been dismissed in the first few days of work - or after you were offered the job but before starting work - you may have a claim. Please contact us to discuss if you have any questions about your situation.

Employment relations problems happen in all types of work and at every level. Even big companies that should know better are often involved with personal grievances. We have found that certain types of employers are over represented in personal grievance claims. They include charities, doctors, and farmers.

We have talked about charities before and we’ll talk about doctors at some stage. For now we want to talk about employees in the farming industry. We frequently come across cases so bad that we can only describe it as employee abuse. Examples include farm workers not being provided with employment agreements, being dismissed on the spot for no reason, having part of their wages withheld illegally, being kicked out of their farm house with no warning, serious bullying and harassment, and being physically and verbally abused by the owner or managers. All of these things could happen to any employee; however, they seem to occur much more frequently with farm employees. The way that many farm employees are dismissed on a whim and with no warning shows that some farmers have no idea of even the most basic employment procedures – or they just don’t care.

If you are a farm employee, you don’t have to put up with this. If you are dismissed or your working conditions are changed without your permission, you probably have a personal grievance claim available to you. It is very important that you keep records (dates, times, what was said and what happened) and that you try to get proof of what has happened. For example, if the farm manager tells you to pack your bags and get out, try to get it in writing (email is fine). Try also to have a reliable witness who will agree to give evidence to support your case.

We realise that it can be challenging for small scale employers to know the law, however, what happens to many farm workers is nasty, vindictive and illegal. There are plenty of industry bodies that will help employers to do the right thing, at a reasonable price, so there’s no excuse for bad behaviour on the farm.

If you have any concerns about your work please contact us.

A shoe shop owner dismissed an employee because she was unhappy about his decision, out of the blue, to reduce her hours to 25 per week. The employer tried to use a false letter of complaint against the employee - a tactic which backfired in the Employment Relations Authority. The employee received a payout of over $12,000. This case is a reminder that your working hours and conditions cannot usually be changed without your agreement.

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.

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.

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.

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

A while ago we were asked to attend a disciplinary meeting with our client, an employee of a large, well known, company in the financial sector. Our client had been dishonest in their dealings with a client of the employer. The client had acted stupidly and felt genuinely sorry for what they had done. Pressures in their personal life had impaired the person’s good judgment.

We had to advise the client that being dismissed was a very real possibility. The client wanted to remain with the company and we talked about alternatives that we could discuss with the employer. The client was willing to accept a demotion and a warning that would stay on their record for a year. The client was open and honest with the employer and expressed real sorrow.

The employer took a break from the disciplinary meeting and asked to meet us again in half an hour at which time they would advise their decision. When the employer came back they offered to keep our client on but in the demoted role. Given the circumstances, and the client’s wish to remain in the company, this was an excellent result. Many companies would have dismissed without further thought. I was impressed with this very large company and their capacity to give an employee a second chance. I also liked how they advised their decision quickly so that the stress and worry for the employee was reduced. A company of compassion that managed to retain a loyal employee with an outcome that was fair to both employer and employee.

I contrast this company’s attitude with that of a large airline which is known for its harshness in employment relations matters. Even quite minor slip ups often lead to a dismissal. Not only that, the HR process is dragged out over many weeks and months, placing the employee under huge stress. Because this airline follows the correct employment procedure (in most cases), it can usually get away with its decision to dismiss. I wonder though how sensible this is. Of course there are situations where someone’s actions need to lead to a dismissal. In the case of an airline, safety infractions should usually be treated seriously. However, there are many other things that can happen that are one offs, or the employee can be brought back on track to being an excellent employee. It costs money to hire and train people and it makes good business sense to not waste that investment by dismissing people when this is not necessary. By dismissing people who would have carried on as good employees, not only does this large airline lose valuable staff members, it encourages an atmosphere of fear where things that go wrong are not going to be reported for fear of being dismissed.

In acting for an employee we will tailor our advice based on our knowledge of the company that we are dealing with. In the case of the airline, if it looks like a dismissal is going to be the likely outcome, we may advise the employee that their best way forward is to seek other work without delay and to exit before a warning or a dismissal is placed on their employment record. However, even in the case of the airline, there is always going to be more than one way to resolve a problem. A through analysis of the situation, and knowledge of the employer, are essential to gaining the best possible outcome for our clients.

In the recent case of Uerata-Jennings v The Scout Association of New Zealand a senior Scout employee who treated Scouting funds as his own personal bank, by the unauthorised spending of over $20,000 of Scout money on his own personal expenses, was found to have been unjustifiably dismissed. The employee claimed that other employees also misused Scout funds in the same way. Because the employer didn’t fully investigate this claim until after the dismissal, the Employment Relations Authority found that the dismissal was unjustified – even though such an investigation would have made NO difference to the decision to dismiss.

For the employer, the good news was that the employee’s award was reduced by 90% because of his blameworthy conduct.

This decision is one of many recent ones that show that, no matter how bad an employee’s actions at work have been, if the employer gets the procedure wrong they will have to pay. For employers it is very important that your procedure is water tight. If you are an employer dealing with a difficult employee situation, or if you are an employee who feels wronged, please talk to us as we can help.

Terry Watson was dismissed by his employer because of misconduct towards other employees. Mr. Watson took a personal grievance claim against his former employer, Oceana Gold, and they made him a settlement offer that included:

• Withdrawal of the letter of dismissal and an agreement to record the termination as a resignation;
• The issuing of a certificate of service;
• Facilitation by the employer of Mr. Watson’s First Line Management Certificate, at the company’s expense;
• Tax free - the sum of $13,000 compensation pursuant to s. 123(1)(c)(i);
• $5,000 plus GST towards Mr. Watson’s legal costs.

Mr. Watson rejected the offer and went to the Employment Relations Authority. He won $7,226, but was ordered to pay the employer’s costs of $8,601. As a result of having rejected the settlement offer worth $28,000, Watson ended up having to pay the employer $1375. Why? Because he rejected the reasonable offer made by the employer.

This case illustrates two points. Firstly, that it usually better for you as an employee to settle your case as early in the process as possible - at the exit negotiation or mediation stage. Early settlement usually leads to the best financial outcome for the employee (and the employer!), it allows for confidentiality and references, it is quick, and it keeps legal costs as low as possible. Naturally, not every case is able to be settled and some do have to be taken to the ERA, however, employees need to be careful that if they do choose to take their case to the ERA that this is in their best interests. The second point is this: we don’t know what legal advice Watson was given and we make no comment or criticism of his representative, but a quick internet search shows that there are many employment lawyers who seem to view the Employment Relations Authority, or worse, the Employment Court, as the first and only port of call. The only thing that can be guaranteed from that kind of tactic is large legal fees. When choosing someone to act for you, choose carefully. 

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10859785