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ERA 2000 - what you must know to avoid problems

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Employment Relations Act 2000 - What you must know about Dismissing Staff

Dismissal

There must be a good reason for a dismissal and the dismissal must be carried out fairly. Otherwise, the employee may have a personal grievance claim against the employer .

What is fair depends on the circumstances. Some general principles must be kept in mind:

Any relevant provisions in the employment agreement must be followed.
If an employment agreement does not have a notice period, then reasonable notice must be given. What is reasonable depends on the circumstances.
Employees have the right to be told what the problem is and that dismissal or other disciplinary action is a possibility. Employees must then be given a genuine opportunity to tell their side of the story before the employer decides what to do.
The employer should investigate any allegations of misconduct thoroughly and without prejudice.
Unless there has been misconduct so serious that it warrants instant dismissal, the employee should be given clear standards to aim for and a genuine opportunity to improve. The sort of conduct that warrants instant dismissal may be set out in the employment agreement.
The employer should treat all employees in the same circumstances in the same way, or be prepared to justify the difference.

Explanation of dismissal

If an employee is dismissed, he or she has the right under the Employment Relations Act to ask the employer for a written statement of the reasons for dismissal.

This request can be made up to 60 days after the dismissal, or 60 days after they find out about the dismissal if that is later.

The employer must provide the written statement within 14 days after such a request.

If the employer fails to provide this written statement, the employee may as a consequence be able to raise a grievance long after the required 90-day limitation period .

Forced resignation

If an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work intolerable for the employee, it may be a forced resignation or "constructive dismissal".

A constructive dismissal may be where, for example, one or more of the following occurs:

the employer has followed a course of conduct deliberately aimed at coercing the employee to resign
the employee is told to choose between resigning or being dismissed
there has been a breach of duty by the employer (i.e. a breach of the agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.

If an employee has been forced to resign, they may have a personal grievance .

It is in everyone's interests that it is clear from the start what the job requires, what behaviour is expected, and what could lead to dismissal.

Click here to find out how to easily and quickly write a job description that will reduce the chance of any misunderstanding

This information is provided by The Employment Relations Service of the Department of Labour. You can get more
information on New Zealand employment relations by visiting Employment

Relations Infoline at www.ers.dol.govt.nz or phone the toll free help-line - 0800 800 863

All the information published in this website is true and accurate to the best of the authors' knowledge and should not be a substitute for legal advice. No liability is assumed by the authors or publisher for any losses suffered by any person relying directly or indirectly on this website.