Recently, I have had a number of enquiries where members are wanting to dismiss employees. Dealing with serious performance or behavioural issues can be very frustrating and it is understandable that employers want to move difficult employees on, however the cost of a successful challenge by the employee lodging a personal grievance claim on the basis of an unjustified dismissal and/or disadvantage can be very expensive for both your organisation's time and money.
How would the Employment Relations Authority gauge your actions/re-actions?
Section 103A of the Employment Relations Act and Employment Case Law requires natural justice ensuring procedural fairness is observed before any action is taken. The Employment Relations Authority or Employment Court will look at whether the employer’s actions and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time a dismissal or action occurred.
In applying this test in the Authority or the court must consider the following —
- whether, having regard to the resources available to the employer, the
employer sufficiently investigated the allegations against the employee
before dismissing or taking action against the employee; and - whether the employer raised the concerns that the employer had with the
employee before dismissing or taking action against the employee; and - whether the employer gave the employee a reasonable opportunity to
respond to the employer’s concerns before dismissing or taking action
against the employee; and - whether the employer genuinely considered the employee’s explanation
(if any) in relation to the allegations against the employee before dismissing
or taking action against the employee.
Often it is worth taking a step back from the situation, especially if it is tense or complicated, to access your organisation's own actions and reactions before working through the process.
Members are strongly urged to seek advice and support about the process to use when considering dismissing an employee. For specialist advice in this area, please
contact me at michaelp@cecc.org.nz.
