Employment Law: Dispute Resolution Community Law New Zealand / Te Whainga Tika Aotearoa OUTLINE What can go wrong? Personal Grievances Legal Process • • • Mediation ERA Employment Court Who can help? WHAT CAN GO WRONG? • • • Personal Grievance grounds Breach of contract Loss of wages GROUNDS FOR PERSONAL GRIEVANCE • Unjustified dismissal o Constructive dismissal • • • • • Unjustified disadvantage Discrimination Sexual harassment Racial harassment Duress over union membership WHEN CAN YOUR EMPLOYER DISMISS YOU? • • • Serious misconduct Must be a good reason Must follow fair procedures TEST OF JUSTIFICATION • 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 • • • • Sufficient investigation Raised concerns before action Reasonable opportunity to respond Genuinely considered employee’s explanation CASE STUDY • • • 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 • • • • • • Check employment agreement Raise it Who is it against? 90 Days Outline basis for grievance Outline solutions REMEDIES • • • • • • 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 • • • • Talking to employer Mediation Employment Relations Authority Employment Court TALKING TO YOUR EMPLOYER • • Cheap and quick Stay on topic o Notes • • • Support person Stay calm Leave if necessary MEDIATION • Don’t need a lawyer o Support person or people may be useful • • Identify issues, points of agreement, find solutions Can record settlements o Binding and confidential • • Can reach alternative arrangements Department of Labour: 0800 20 90 20 EMPLOYMENT RELATIONS AUTHORITY • • Don’t need a lawyer File a statement of problem o o o o o • • 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 • • • • Lawyer advisable Stricter rules of evidence Re-do entire case 28 days OTHER OPTIONS • • Human Rights Commission Labour inspectors o Minimum entitlements o DoL: 0800 20 90 20 WHO CAN HELP? • • • Your Community Law Centre Other local services Department of Labour o 0800 20 90 20 o www.dol.govt.nz • Employment Relations Authority o www.era.govt.nz o 04 915 9550 • 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 Please feel free to download, adapt, improve, distribute, remix, tweak and build upon this presentation.