Employment Law: Dispute Resolution

Report
Employment Law:
Dispute Resolution
Community Law New Zealand / Te Whainga Tika Aotearoa
OUTLINE
What can go wrong?
Personal Grievances
Legal Process
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Mediation
ERA
Employment Court
Who can help?
WHAT CAN GO WRONG?
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Personal Grievance grounds
Breach of contract
Loss of wages
GROUNDS FOR PERSONAL GRIEVANCE
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Unjustified dismissal
o Constructive dismissal
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Unjustified disadvantage
Discrimination
Sexual harassment
Racial harassment
Duress over union membership
WHEN CAN YOUR EMPLOYER DISMISS YOU?
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Serious misconduct
Must be a good reason
Must follow fair procedures
TEST OF JUSTIFICATION
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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 the
dismissal or action occurred.
PROCEDURAL FAIRNESS
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Sufficient investigation
Raised concerns before action
Reasonable opportunity to respond
Genuinely considered employee’s explanation
CASE STUDY
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David is employed as a secretary at Files and Things Inc. David
used to have bleached hair but his new manager Georgina gave
him a written warning about his appearance, and he dyed it a
natural colour.
This week, Georgina criticised the way David was talking to clients
and told him to “smarten up your act or you’ll be out of here”.
David has tried to be more polite to clients but he is unsure what
brought on Georgina’s criticism.
Yesterday, Georgina handed David a final written warning and a
dismissal letter. The reason she gave for the dismissal was that
“your appearance and attitude are not well-suited to an office
environment”.
Does David have grounds for a personal grievance? What are these?
PERSONAL GRIEVANCES
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Check employment agreement
Raise it
Who is it against?
90 Days
Outline basis for grievance
Outline solutions
REMEDIES
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Reinstatement
Lost wages
Hurt and humiliation
Written reference
Agreement not to speak ill of each other
Apology
REVISIT CASE STUDY
Dear Georgina,
I just wanted you to know that I intend to raise a Personal Grievance.
The way you have treated me is completely crap and very unfair and
you should not have fired me like you did.
Can we meet to discuss this on Monday at 9am? Please give me a call
on (04) 499 2928 to arrange this.
Regards
David
What is missing from this personal grievance?
LEGAL PROCESS
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Talking to employer
Mediation
Employment Relations Authority
Employment Court
TALKING TO YOUR EMPLOYER
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Cheap and quick
Stay on topic
o Notes
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Support person
Stay calm
Leave if necessary
MEDIATION
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Don’t need a lawyer
o Support person or people may be useful
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Identify issues, points of agreement, find solutions
Can record settlements
o Binding and confidential
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Can reach alternative arrangements
Department of Labour: 0800 20 90 20
EMPLOYMENT RELATIONS AUTHORITY
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Don’t need a lawyer
File a statement of problem
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o
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Facts causing problem
Steps take to try and solve problem e.g. mediation
What resolution you would like
Other relevant documents
ERA website: www.era.govt.nz
Preliminary conferences
The investigative meeting
EMPLOYMENT COURT
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Lawyer advisable
Stricter rules of evidence
Re-do entire case
28 days
OTHER OPTIONS
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Human Rights Commission
Labour inspectors
o Minimum entitlements
o DoL: 0800 20 90 20
WHO CAN HELP?
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Your Community Law Centre
Other local services
Department of Labour
o 0800 20 90 20
o www.dol.govt.nz
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Employment Relations Authority
o www.era.govt.nz
o 04 915 9550
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Support person
Questions?
Community Law New Zealand / Te Whainga Tika Aotearoa
THANK YOU
This presentation was put together by:
Wellington Community Law Centre
PO Box 24005, Wellington 6142
(04) 499 2928
[email protected]
www.wclc.org.nz
Disclaimer: We’ve made every effort has been
made to ensure this information is correct at the
time of publication. However, we can’t take
responsibility for errors or omissions. Teachers and
learners may need to seek specific advice for your
particular situation. Where appropriate, we urge
you to do so. Visit your local Community Law
Centre: www.communitylaw.org.nz
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