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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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. 

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.

It’s not uncommon to get the feeling that your employer doesn’t want you there any more. When you’re caught up in the worry and stress of a bad employment situation it can be difficult to know what to do next. These are some suggestions:

• Keep, in a safe place, copies of email, memos, and other communications, that raise issues or concerns.
• Take notes of conversations, or things that happen, that cause you concern. The notes should include the time and date.
• Discreetly look for other jobs. Knowing that you have a job to go to gives you more options. If you do find another job, please do not resign until you have spoken to us, as resigning without first taking the right employment law steps, will lessen your bargaining power and may make it more difficult to obtain a reference and compensation.
• Remember: HR is not your friend. The HR department works for the company – not for you. In many cases they can help to resolve smaller HR type issues, but when it becomes you versus the company, they will take the company’s side and you may find that things that you have said to them are used against you. Be careful.
• If the situation becomes too stressful or heated, go home sick. Any of these symptoms are commonplace when people are dealing with stressful workplace issues: depression, high blood pressure, headaches, insomnia, tearfulness, and women’s issues. Going home sick is genuine.
• Seek help sooner, rather than later, so that you know where you stand and what your options are. We offer thorough initial advice for $150, and having this information will in itself make your situation more manageable. Sometimes, clients just want us to remain in the background and the employer never needs to know that you have sought help. Other times, consulting us leads to the client asking us to approach their employer to find a professional resolution to a difficult situation – in 90% of cases we can obtain a fast, professional resolution that will usually include compensation, satisfactory references, an apology and closure.

If you want to ask us a question about your situation please contact us at no cost. We are happy to be contacted by email or phone.