If you feel that things aren't right at work you're probably right, even if you can't put things into words. Trust your intuition, or gut feeling. 

Often changes in attitude towards employees happen after the appointment of a new manager. The attitude changes can be subtle at first, leaving you doubting whether or not what you are sensing is right. If you are in this situation we encourage you to make diary notes of things that are happening and keep these safe off site. You can also contact us by email or telephone for a free, no obligation, discussion to talk about what's happening and your options. If you do this at an early stage you can avoid the damage to your health, and work relationships, which often arises if things have been deteriorating for a while.

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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. 

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.

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.

We were asked to attend an employment meeting with our client, the employee. The family owned company indicated that the purpose of the meeting was to discuss a restructure/redundancy that “might” affect our client. 

Our client had had a very good relationship with the owners of the company and they had been like family to each other; however, she had sensed that something had changed a couple of months earlier. It was hard for her to define what had changed as the change was subtle. One result was that she was convinced that the employer was using the possible redundancy as a means to force her out. 

At the meeting we were professional but frank about the employee’s perception that there had been a change in the relationship and that there was suspicion about the redundancy process. The employer responded by asking what our offer was in order to settle the issues between the parties. While there weren’t any real, tangible issues, there was an underlying feeling and the employee was quite clear that she could not continue to work there. About half an hour after the meeting started we had agreement on an exit package. It was agreed that the employer would within two days pay a reasonable sum to the employee, and that the employee would finish work that day. The employer and employee hugged and the only remaining thing to do was paperwork, which we took care of. 


It was satisfying to be able to quickly obtain a good offer for our client, while maintaining the good feelings that the parties had had for each other before the recent blip in their relationship. 

When considering an exit package, or any kind of negotiated settlement, several factors need to be considered:

Lost wages. Usually 3 months is the maximum. There are some exceptions. Commonly 1-2 months are offered.

Section 123(1)(c)(i) tax free payments for hurt and humiliation. Common amounts range from $5,000-$10,000. Sometimes they are lower – depending on the circumstances of the case and the employer, however, we have had success with obtaining much higher settlements of over $40,000. Care needs to be taken in structuring these settlements right. If done wrong they could expose you to unwanted attention from the IRD together with substantial tax penalties.

Costs. Sometimes an explicit amount is agreed for your costs, other times a global settlement amount will be agreed and your costs will form one part of that amount.

Benefits: for example, medical insurance, superannuation schemes, EAP assistance. The parties need to agree how and when these will finish being the employer’s responsibility.

Protecting your reputation: issues here include references, agreements not to say anything negative about the former employee, providing third parties with agreed reasons for leaving, removal of warnings from your employment file, converting a dismissal into a resignation, and apologies.

Everyone has different needs in terms of what they need to obtain out of a settlement in order to allow them to move on with dignity. Please contact us if we can help.

Problems in the employment relationship often lead to the employer and employee attending mediation at the Department of Labour. If the issues are resolved the parties will sign a “record of settlement.” Agreements reached privately can also be signed off by a mediator which then gives them the same legal status as a settlement reached at mediation.

These settlements are legally binding. Almost always they contain provisions regarding confidentiality and for the payment of money by the employer to the employee. In the recent case of Joumaa v Pita Doctors Ltd the employer failed to make payment on the due date because it was experiencing serious financial difficulties. The Employment Relations Authority punished the employer’s failure by ordering that it pay a further $300 to Mr. Joumaa. Had it not been for the fact that the employer was experiencing financial hardship; the penalty would probably have been much greater. In our experience, most employers take their obligations under these agreements seriously, and it is rare that there are difficulties once an agreement has been reached, however, if there are difficulties something can be done about it.

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

The Herald recently reported that increasing numbers of employees are being overwhelmed by work pressures. This is an issue we frequently come across. The problem seems to occur most often to professionals and managers. The causes include pressure to work longer and harder because of a difficult trading environment, employees who leave not being replaced (forcing other employees to take up additional work for which they may have no spare capacity), bad management at a more senior level, and management using work pressure as a  tool to force an employee out. While the underlying reasons may differ, the effect on the employee is usually the same: increasing levels of stress and negative effects on health. The health effects include psychological issues (depression, insomnia and feeling stressed out), as well as physical. If your employer can’t, or won’t, take steps to ensure that your workload is safe and manageable then you owe it to yourself, and your family, to seek help. We have helped many employees to resolve work situations involving extreme ongoing stress. Please talk to us if you have any concerns.

http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10859339