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Employment LawEmployment Law - Employment Matters Resolved with Alternate Dispute Resolution
I have created a new site dedicated solely to Employment Law. You can go directly to it, www.employmentlaw.net.nz This site went live as of 1 January 2012. All my updates will be on this new site. You can still look here for employment law information, however the most up to date information will be at www.employmentlaw.net.nz If something has just happened to you at work and you need immediate assistance call us 24/7 for free now, even from your mobile phone, on 0800 HELP ME (0800 4357 63). Should I be unavailable due to being in a mediation or an Employment Relations Authority hearing, then leave a quick message and we will call you back at my next available oppotunity which will be either during my next break or as soon as I get your message. Should you prefer to txt me then send your txt to 021 77 1919.
In the past twelve months to December 2011, I have personally concluded 101 disputes of which 94 resulted in the parties successfully resolving consensually. This is a success rate of 93.1%. I have also had 4 concluded matters through the Employment Relations Authority in the past year of which I have won all of them for my clients (three representing employees and one representing the directors of the employer).
Where am I & what am I up to this week?
You will need to go to our new Employment Disputes Law site to see this information
Read our reviews on our Trade Me services page. (A new window will open)
We mainly help employees that find themselves in difficult situations such as: -
New Zealand has very strong employment law legislation. This employment law is unique to our country and many international organisations and companies struggle with our employment law. The predominant pieces of legislation for our employment law are: - (new window will open from NZ Legislation site)
The Employment Relations Act 2000
Mediation and facilitation can be used to help employees and employers in many situations when they have issues with employment law or a dispute or friction in the workplace. Employment law situations can get highly emotive as we are dealing with peoples livelihood. We can act in one of two capacities for employment law situations or disputes in the workplace. We can either act as the advocate for you, ie you appoint us as your support person and we solely represent your best interests with the issues that you have, or secondly the employee and employer jointly appoint us and we come in as the neutral party helping both sides come to a consensual agreement over the problem.
Employment Law - Typical employment dispute situations.
Below are some typical employment law scenarios of what some people find themselves in and what they can possibly do to help resolve the situation to their best advantage.
I am an employee and I have been called to a disciplinary meeting. What can I do?
I have been fired / sacked / terminated from my employment. What can I do?
What is the process for taking a Personal Grievance?
I have been made redundant. What can I do?
Blog - Personal Grievance Avoidance Tips
We have put together a printer friendly publication that explains the basics of employee rights with regards to employment law
This brochure covers What are my employment rights? Unjustified terminations or warnings Help! What can I do right now?
Should you have an employment issue not covered above, then please don't hesitate to call us on 0800 HELP ME (0800 4357 63) or email danny.gelb@mediate.co.nz
Read our reviews on our Trade Me services page. (A new window will open)
What are my employment rights?New Zealand employment rights and obligations are primarily controlled by the Employment Relations Act 2000. This act of parliament states what your rights are as an employee. The essence of this law is that your employer must treat you in a fair and just way in handling all aspects of your employment and that they must act in good faith at all times. Should they not treat you in a fair or just manner that either disadvantages you or leads to your employment termination then you may be justified in raising a personal grievance against your employer in order for you to attempt to correct any wrongdoing and to pay you compensation for what you think they may have done that was unfair, unjust or wrong. As an employee you must also act in good faith in handling all matters of employment with your employer. Should an employer be able to establish that you have not acted in good faith and that you have contributed to the situation then any money the Employment Relations Authority may award you in compensation for your personal grievance may be reduced as you may have contributed to the situation.
An employee may raise a personal grievance against their employer at anytime within 90 days from the date of the incident that caused the employee to feel personally aggrieved. A grievance is raised by a letter being sent to your employer stating that you have a personal grievance, what has happened to cause you this personal grievance and what you want the employer to do to make this matter right. It is important that this letter be written correctly otherwise it may not be considered a valid personal grievance claim and by the time you realise this the 90 days have passed and it is too late to proceed with your claim. If you are unsure then you can contact us for free advice or we can help write this letter for you.
Disciplinary meetingsDisciplinary meetings are called by employers if they have an alleged item of misconduct or a performance issue with you that they want to investigate or discuss. For this meeting to be fair on you, your employer must give you written notice of the meeting stating at a minimum: -
You have the right to reschedule the meeting if your support person cannot make the time that your employer proposes. If your employer fails to include all of the above in the notice then the meeting may be unfair and unjust on you and you may have grounds for a personal grievance. The best type of support person to take to these meetings is someone who has knowledge of employment law. A friend or work colleague may give you comfort at these meetings. However, if they don't know employment law, they may not be able to advise you of your rights. Sometimes we can attend these meetings as your support person free of charge to you, subject to our availability. The typical outcomes of a disciplinary meeting include:-
Unjustified termination or warningsShould you believe that the outcome of your disciplinary meeting is not justified and your employer is wrong in their decision then you can challenge it by raising a personal grievance. Thought should be given before you raise a personal grievance because it may effect your long term employment relationship with your employer. We can talk you through the positives and negatives of raising a personal grievance.
RedundancyRedundancy is an unfortunate risk of employment that can not be avoided. In reality you have very little control over your company’s situation and the need or not for redundancies. There is no legal requirement for an employer to pay you anything extra for a redundancy. However, employers are required by law to go through a consulting process with you. This includes talking with you about the possibilities of redundancy and seeking your feedback before they make their final decision. Similar to the disciplinary meetings they must give you written notice of the meeting incorporating most of the same information as a notice for a disciplinary meeting. Your employer is also required to have a genuine need for the redundancy. They cannot simply use redundancy as an excuse to get rid of an employee that they no longer want working for them. Should an employer fail on either of these two points then you will most likely have a genuine cause to raise a personal grievance.
Constructive dismissalThere is an urban myth floating around many work places that if an employee does not like their job or their working conditions they can simply resign and claim a constructive dismissal personal grievance against their employer. This is simply not true. The Employment Relations Act 2000 is mostly written in such a way that the onus is on the employer to disprove the allegations of the employee. This changes with constructive dismissal as the onus of proof is on the employee to prove that they have been constructively dismissed. Most cases for constructive dismissal fail because the burden of proof is very high. It is usually only successful in situations where the employer has: -
Help! What can I do right now?If you fear for your personal safety or wellbeing at work then get yourself out of there straight away. Once you are in a safe place then call for help (0800 HELP ME). Never resign in the heat of the moment. Should you resign you lose most of your compensation rights as an employee and you make it much harder for your advocate to help you. If the situation is really stressing you then it is best to go home sick after telling your manager that’s what you are doing. Go and see your doctor for a medical certificate and phone someone who can help you with your employment situation. Keep an accurate diary of all the events that have happened. Start a file and write down the time, day & date, where you were, who you were with and who said or did what to whom. If at all possible take home printouts of all communications regarding your issue. Contact our employment advocate on 0800 HELP ME (0800 435 763) who will talk to you free of charge to get specific advice on how to best handle your particular set of circumstances. We will be able to give you sound advice over the phone and then if appropriate send you a free action plan by email. Please don't hesitate to call us if you require other employment law advice that is not covered here.
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