Unfair Dismissal

Unfair dismissal, legally known as unjustified dismissal, occurs when an employer terminates your employment in a way that breaches your rights under the Employment Relations Act 2000. The law requires employers to act as a fair and reasonable employer would in all circumstances, which includes following proper procedures and having adequate justification for dismissal.

There are two main types of unjustified dismissal: procedurally unfair dismissal, where the employer failed to follow proper process, and substantively unfair dismissal, where there wasn't sufficient justification for the dismissal. Often, dismissals can be both procedurally and substantively unfair.

Common examples of unfair dismissal include termination without investigation, dismissal for minor misconduct that doesn't warrant such severe action, failure to provide warnings or opportunities for improvement, and dismissal based on false or exaggerated allegations. The key test is whether a fair and reasonable employer would have dismissed you in the same circumstances.

It's important to understand that even if you made mistakes at work, this doesn't automatically justify dismissal. Employers must consider factors like the seriousness of the issue, your employment history, whether you were given training or support, and whether lesser penalties would be appropriate.

Before dismissing an employee, employers have strict legal obligations they must fulfil. These obligations stem from the duty to act in good faith and as a fair and reasonable employer would in all circumstances. Failure to meet these obligations can render a dismissal unfair, regardless of the underlying issues.

Employers must conduct a fair and thorough investigation into any allegations or concerns. This includes gathering relevant evidence, interviewing witnesses, and giving you a genuine opportunity to respond to any allegations. The investigation should be conducted by someone without a predetermined view of the outcome.

You have the right to be informed of the specific allegations or concerns, provided with relevant evidence, and given adequate time to prepare your response. You're also entitled to have a support person or representative present during disciplinary meetings, and employers must genuinely consider your explanations and any mitigating factors.

For performance-related dismissals, employers must provide clear expectations, adequate training and support, regular feedback, and reasonable opportunities for improvement. They should also consider whether the performance issues are due to factors beyond your control, such as inadequate resources or unclear instructions.

The concept of progressive discipline means employers should generally start with lesser penalties like warnings or additional training before considering dismissal, unless the misconduct is so serious that it warrants immediate termination.

If you believe you've been unfairly dismissed, you can challenge the decision by raising a personal grievance for unjustified dismissal. This process begins with attempting to resolve the matter directly with your employer, either personally or through a representative.

The first step is usually to raise your concerns in writing with your employer, clearly stating that you believe your dismissal was unjustified and explaining why. Many employers prefer to resolve these matters quickly to avoid the cost and uncertainty of formal proceedings, so this initial approach can sometimes lead to a satisfactory resolution.

If direct negotiation doesn't work, you can file a personal grievance with the Employment Relations Authority (ERA). This involves completing the required forms and paying a filing fee, though fee waivers are available for those experiencing financial hardship. The ERA will then facilitate mediation to try to resolve the dispute.

Mediation is a confidential process where an independent mediator helps both parties explore options for resolution. Many cases settle at mediation, which can be faster and less stressful than a formal hearing. If mediation doesn't resolve the matter, the case proceeds to an ERA hearing where a member will make a binding decision.

Throughout this process, it's crucial to continue looking for new employment to minimise your losses, as any compensation awarded will typically be reduced by amounts you could have reasonably earned elsewhere.

Building a strong unfair dismissal case requires comprehensive documentation and evidence. The quality and completeness of your evidence can significantly impact the outcome of your case, so it's important to gather and preserve relevant materials as soon as possible after your dismissal.

Start by documenting the circumstances of your dismissal in detail. Write down exactly what happened, who was present, what was said, and the reasons given for your termination. Include dates, times, and locations of all relevant conversations and meetings. This contemporaneous record can be crucial evidence later.

Collect all employment-related documents, including your employment agreement, job description, performance reviews, disciplinary records, and any correspondence with your employer. Email communications are particularly important, as they provide a clear record of what was said and when.

If there were witnesses to relevant events, consider asking them to provide written statements about what they observed. However, be mindful that current employees may be reluctant to provide statements that could affect their own employment.

Keep detailed records of your job search efforts, including applications made, interviews attended, and any job offers received or declined. This information is essential for calculating lost wages and demonstrating that you're making reasonable efforts to mitigate your losses.

Medical evidence may be relevant if your dismissal has affected your health or if health issues contributed to the employment problems. Similarly, evidence of the impact on your reputation or career prospects can support claims for compensation for hurt and humiliation.

If your dismissal is found to be unjustified, several remedies may be available to you. The most common remedy is compensation, which can include reimbursement for lost wages and compensation for hurt and humiliation caused by the unfair treatment.

Lost wage compensation covers the income you would have earned from the date of dismissal until the matter is resolved, minus any income you actually earned or could have reasonably earned from alternative employment. This calculation considers your duty to mitigate losses by actively seeking new employment.

Compensation for hurt and humiliation recognises the personal impact of being unfairly dismissed. Awards typically range from $5,000 to $25,000, though they can be higher in cases involving particularly serious procedural failures or where the dismissal has had severe consequences for your career or wellbeing.

In some cases, reinstatement to your former position may be ordered, though this is less common and usually only appropriate where the employment relationship can be restored. Factors considered include whether you want to return, whether the employer would accept you back, and whether the working relationship can be rebuilt.

The ERA can also order your employer to pay contribution to your legal costs, though this is discretionary and depends on factors like the complexity of the case and the parties' conduct during proceedings. However, you should be aware that if your case is unsuccessful, you might be ordered to contribute to your employer's costs.

Additional remedies might include orders for your employer to provide references, remove adverse material from your personnel file, or take steps to restore your reputation if it was damaged by the dismissal process.

Certain employment situations involve special rules or considerations that can affect your rights regarding unfair dismissal. Understanding these exceptions is important for assessing your options and the strength of your case.

Trial periods allow employers to dismiss employees within the first 90 days without the usual unfair dismissal protections, but only if the trial period clause is valid and properly implemented. Many trial period clauses are invalid due to technical errors, and even valid trial periods don't protect employers from claims of discrimination or bad faith dismissal.

Fixed-term employees have the same protection against unfair dismissal as permanent employees, except that their employment can end when the fixed term expires. However, if a fixed-term contract is terminated early, the usual unfair dismissal rules apply.

Senior employees and those in positions of trust may face different standards, with employers potentially having greater latitude to dismiss for conduct that undermines confidence or damages business relationships. However, proper process must still be followed.

Redundancy situations require employers to follow specific consultation processes and consider alternatives to dismissal. If your position was genuinely redundant but proper process wasn't followed, you may have claims for both unjustified dismissal and redundancy compensation.

Employees who resign may still have claims for constructive dismissal if they were forced to resign due to their employer's conduct. This requires showing that your employer's actions made continued employment impossible or unreasonable.

Given the strict 90-day deadline and complexity of employment law, seeking legal advice early is crucial when you believe you've been unfairly dismissed. An experienced employment lawyer can assess the strength of your case, guide you through the process, and help you achieve the best possible outcome.

You should consider getting legal help immediately if your dismissal involved serious procedural failures, discrimination, or if significant compensation is at stake. Legal representation is also important if your employer has lawyers involved or if the case involves complex legal or factual issues.

Even if you're considering trying to resolve the matter directly with your employer first, getting legal advice about your rights and options can help you negotiate more effectively and avoid making statements or agreements that could harm your position later.

A lawyer can help you gather and preserve evidence, calculate potential compensation, and develop a strategy for your case. They can also handle communications with your employer, reducing stress and ensuring your rights are protected throughout the process.

Many employment lawyers offer initial consultations to assess your case and explain your options. This can help you understand whether you have a strong case and what the likely outcomes and costs might be, allowing you to make an informed decision about how to proceed.

Remember that employment law is complex and constantly evolving. What might seem like a clear-cut case to you might have complications that only an experienced lawyer would identify, while cases that seem hopeless might actually have strong legal grounds for challenge.