employment law palmertson north jeremy mcguireEMPLOYMENT LAW

Employment Lawyer Palmerston North – Jeremy McGuire

I have successfully represented employers and employees in workplace disciplinary meetings and investigations, dismissals and redundancies. I also draft employment contracts and independent contractor agreements and advise on restructurings and downsizing.

Employment law can very complicated and it is essential that employers, in particular, get it right. Procedural and substantive unfairness by an employer can both result in a personal grievance from an unhappy employee. Employees are entitled to be treated reasonably and fairly. However employers also have the right to expect that the principles of trust and confidence that are owed to them are not breached by inappropriate conduct by employees such as dishonesty, aggression, harassment, drug-taking, abandonment, consistent non-performance and so on.

Covid-19 Update

Redundancies will be a fact of life after the COVID-19 pandemic. The economy will experience a recession because of a reduced demand for goods and services, such as in the tourism industry. That means there will be less need for labour and staff and people will be “laid off’ (made redundant) as a consequence. Redundancies must be justified (the employee must be superfluous) and must be conducted fairly (often called “procedural fairness” or “fair process”). An employee could file a personal grievance if the redundancy is either invalid (the employee was not in fact superfluous) or the employee was treated unfairly when being made redundant. I have drafted employment contracts for clients that include practical guidance on when and how employees can be made redundant because many of the cases in this area involve employers who did not actually know how to do this. They end up at the bottom of the cliff. My agreements are designed to prevent the fall. Also, naturally, since the agreements are effectively a “how to” I can soon see if an employee’s purported redundancy is, in reality, an unjustified dismissal.

Breakdown of the Employment Relationship

There is no such thing now as a “job for life”. People can come and go in a workplace depending on whether a person is required or suitable. If a person is not required then she or he may be made redundant for reasons of being surplus to requirements. Otherwise a person may lose his or her job following a termination of the employment relationship. An employee might terminate by, for example, abandoning the job. An employer might terminate an employment relationship by summarily dismissing the employee for serious misconduct.

Certain processes must be followed if, particularly, an employer terminates the employment relationship. Those processes must be both procedurally fair and substantively justified. An employee has the right to be fully informed about why the employer is unhappy with her. She or he is entitled to have a full right of reply if an employer alleges that the employee is performing unsatisfactorily for some reason or done something badly wrong. That is called the right to be properly heard. After that, an employer must also justify why that employer’s performance is apparently sub-standard. For example, an employer can’t just claim an employee is dishonest. An employer must have good evidence or proof of that alleged dishonesty. An employee may have been unjustifiably dismissed if an employer fails to meet this requirement. An employee should also be aware that an employer can still be liable for a personal grievance even if she resigned, if the resignation was effectively forced on the employee because of the unfair way she was being treated at work. Bullying, sexual harassment and severe work pressure are some of the main reasons why people resign from their jobs without really wanting to. If that happens, an employer may be answerable for a personal grievance alleging that the employee was “constructively dismissed” rather than truly resigning.

An employee must file a personal grievance within 90 days of the date of dismissal. The parties are almost always referred to mediation, which is a free service managed by the Department of Labour. If the personal grievance is not settled there then it will usually be investigated at an investigation meeting conducted by the Employment Relations Authority (sometimes more important personal grievances are referred directly to the Employment Court).

I am experienced in all aspects of employment law and have represented employers and employees.

Employment Lawyer Palmerston North – Jeremy McGuire

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