Unfair dismissal is one of the common employment relationship problems in New Zealand. Employees and employers often require guidance when dealing with unfair dismissal issues. This article explains unfair dismissal, the difference between unfair dismissal and constructive dismissal, and the rights for employees and employers.
What is unfair dismissal and constructive dismissal
An unjustified dismissal means an employer has terminated the employment contract and dismissed their employee unfairly.
Constructive dismissal is a type of unfair dismissal. It means the employer made work unbearable or pressured someone to quit, resulting in their resignation.
What rights do you have when someone unfairly fires you in New Zealand?
In New Zealand, there are laws and regulations in place to protect employees from unfair dismissal. From both employees’ and employers' sides, it's crucial to understand the fair dismissal process, as well as the rights and responsibilities that come with it.
Fairness is considered under circumstances
First of all, it's important to know that employers do not have to follow the dismissal procedure precisely. Some small mistakes revealed may not necessarily mean that the entire dismissal is unfair. The context of the situation really matters. Fairness is determined by considering what a sensible employer would have done under the specific context.
During the dismissal process, the clauses in the employment contract, regulations and procedures applicable in the workplace should all be considered. Fairness is determined by considering what a sensible employer would have done under the specific context. For instance, when your employment agreement doesn't include a notice period, reasonable notice should still be specified.
You have the right to request an explanation
When you receive a dismissal, you have the right to demand a written explanation from your employer. This request can be made within 60 days from the time you are informed of your dismissal. After you have made the request, your employer has 14 days to provide you with the written statement.
If your employer fails to provide this written statement, you might be allowed to raise a personal grievance even after the 90 days notice period has passed. This shows how important clear communication and transparency are between employers and employees during the dismissal process.
Obligations for Employers
Employers must stick to a fair procedure when disciplining an employee for misconduct. They must have a solid justification for disciplinary action before taking any action. This justification should be grounded by clear evidence and a thorough understanding of the situation.
The process for disciplinary action, including warnings or termination, is normally specified in workplace policies or employment contracts. Employers are required to follow these procedures diligently by law. When there is no established procedure, employers should embrace a careful, comprehensive, and unbiased method.
Performance or Disciplinary Issues
It's important to understand the difference between performance issues and disciplinary problems. Performance issues, which are often related to underperformance, refer to an employee's inability to meet the standards set in their employment agreement. Performance management procedures can be either informal or formal and are different from disciplinary procedures.
When it comes to performance issues, employers should emphasising on coaching, training, and providing the necessary resources to help employees improve their performance. On the contrary, disciplinary procedures deal with misconduct or behavior issues that break employment contracts and usually include warnings or termination.
In summary, for both employers and employees, it is important to be aware of the pros and cons of the dismissal process in New Zealand workplace. Fairness, clear communication, and following agreed procedures are the key elements of a just dismissal process.
If you are still unsure about the procedure, employment law or have concerns about your situation, please don’t hesitate to talk to us. As an experienced employment advocacy firm, we offer free consultation for employment issues.
We will help you to understand your legal rights and responsibilities. We can help you to navigate this unsettling situation with confidence and support.