Have you been dismissed or terminated from your job and feel it may be for unfair reasons? Here’s what you need to know, and what you can do next.
Being fired or dismissed from your job can be a difficult and distressing thing to face – but it’s generally within your employers’ right to dismiss you. However, there are some circumstances where this is not the case, and there may be legal remedies and services to help you, says lawyer Peter Cullen of the Cullen Employment Law Firm.
Unjustified dismissal refers to your employer either firing you for unfair reasons or doing so in a way that is not fair or reasonable. Constructive dismissal, on the other hand, means you’ve quit your job because your employer has made it impossible for you to continue working there. If you believe either applies, you may wish to file a personal grievance – the legal remedy covering both types of unlawful termination.
What are personal grievances?
There is a broad range of reasons you can file a personal grievance, according Employment New Zealand, including:
- Discrimination, sexual or racial harassment
- Duress over membership of a union or other employee organisation
- Disadvantage due to your employer not providing the agreed hours of work or reasonable notice when cancelling a shift
- Your employer trying to force or persuade you to perform duties that contravene the Health and Safety at Work Act 2015
- Being forced to work on a religious holiday.
Likewise, you may file a personal grievance if you felt forced to resign because your employer’s actions (or inaction) makes your workplace intolerable. This may fall into one of three broad categories:
- Being given a choice between resigning or being dismissed
- Your employer pressuring you to resign from your job
- Your employer acting so badly you no longer feel you can remain in your job.
This last point can take many forms, for example:
- Being maliciously assigned unpleasant or unproductive work
- Being forced to work excessive hours under a lot of stress
- Repeated failure to pay your wages
- Being moved from a permanent contract to casual, leaving you unable to provide for yourself
- Having your hours drastically reduced without your agreement.
When is dismissal justified?
While it may feel unfair, being dismissed because your employer no longer has the cash flow or need for your position is not grounds for unjustified dismissal – and provided reasonable notice is provided, this cannot be considered unfair either.
Likewise, being dismissed for conduct outside the workplace could be considered fair and reasonable if your employer can show that the conduct has bought the business into disrepute.
“For example, there was a case where the Employment Court found the dismissal of an employee for a highly publicised road rage incident outside of working hours was justified, as it brought the employer into disrepute and compromised the employee’s ability to do his job,” Cullen says.
Other examples of reasons an employer can likely lawfully terminate employment according to Employment New Zealand include:
- Serious misconduct, for example, stealing or bullying, harassing or discriminating against others
- Ongoing performance not improving or failure to meet the reasonable expectations of the position following a Performance Improvement Plan
- You are no longer able to do your job properly – for example, for health reasons
- There has been a fundamental breakdown in the employment relationship rendering continuing employment unworkable.
What to do if you think you’ve been unlawfully dismissed
You can start by raising your complaint internally and working through the issue with your employer directly, or through mediation – which is provided free of charge through the Ministry of Business, Innovation and Employment.
However, if these pathways have failed to fix the issue or you do not wish to use either, you may make a personal grievance claim through the Employment Relations Authority (ERA) on their website.
“If you have a genuine case of unjustified dismissal you should make sure you write to the employer within 90 days of the dismissal occurring or being bought to your attention,” Cullen says. “Set out what your complaint is, that you are raising a grievance and the remedies you would like.”
As employment law is complex, it’s often best to seek advice from a specialist employment lawyer, he says.
You can also seek free legal information and advice through Community Law Centres or access help through your union if you belong to one.
What may happen if you complain about unfair dismissal?
If you file a personal grievance through ERA, they will invite your employer to respond to your complaint and conduct a phone conference involving both of you. If the issue remains unresolved, they will generally request you undertake mediation. If that fails, ERA will invite both parties to a hearing to give evidence, usually under oath. Following the hearing, a written determination will be issued, which Is published online and legally binding.
Cullen reports around 90% of cases are settled before a hearing. This is less likely to affect future employability, he adds, with future employers far less concerned about a potential employee who has raised a dispute, gone through mediation and come to a confidential settlement.
So, what can these settlements potentially include?
“The first possible remedy provided for is reinstatement to your position where you have been unjustifiably dismissed,” Cullen says.
You could also be reimbursed for lost income, which may include future lost income, and you may be awarded compensation for humiliation and distress and be reimbursed for the costs of pursuing the claim, Cullen says.
Whether you choose to talk to your employer directly, work through mediation or proceed to a legal complaint, be prepared with any documentation you have, a clear idea of what you’re looking for as a remedy and a realistic outlook on how things may work out.
