Dismissing An Employee Lawfully in Albany, Auckland
If you are planning to dismiss an employee, it must be done lawfully and under specific conditions. In order for this dismissal to be lawful it must be substantively justified and it needs to be done in a procedurally fair way. Failure to do so can leave the employer exposed to legal action. Always seek qualified legal advice.
There must be a valid reason for a dismissal. It must be done in a fair manner and it will be dependent upon the circumstances. Example: If the employer dismisses the employee without a warning it must fall within specific parameters that are fully detailed out and understood at the time of hire.
If the employer has given a warning or has dismissed an employee unlawfully, the employee can file a personal grievance claim to the Employment Relations Authority (a part of the NZ Dept of Labour). Employees can be given lost wages as well as distress damages as compensation upon a successful outcome of such a procedure for the employee.
How to defend an employer from a personal grievance that has been brought by an employee.
Employment Relations can give the necessary information and mediation services in order to help assist the employment problem. You can reach them at 0800 800 863. For a claim to be justified, the employer must have a valid reason for dismissal. This valid reason should always be in writing and copies kept in the employee file as well as in the employer file. These requirements will vary depending upon the specific circumstances. If the employee is dismissed without warning it may only be done under a specific set of parameters and guidelines.
A summary dismissal must be for serious misconduct and justified. An employee may be dismissed without warning as long as these parameters are followed. Here is a list of some of those parameters.
Act of Dishonesty
Assault of another employee
Assault of employer
Breach of conduct
Disobeying a law
Disobeying instruction directly from the employer
Possession of illegal substances while at work
Even if the employee is dismissed for such reasons, they are still entitled to their outstanding wages. This includes holiday pay as entitled under their contract.
Poor Work Performance or Less Serious Misconduct
The grounds for this action are poor work performance or a less serious form of misconduct. Without previous warnings, the employer does not have the right to dismiss the employee. The typical procedure is to give an oral warning and then to give a written formal warning. After a final third written formal warning then the employee may be let go without further discussion should the employee again fall short of their duties within the company.
General Rules of Fair Procedures in Dismissing an Employee
Employers are required to take the following measures to make sure that the dismissal is fair. These apply no matter which type of dismissal is being made.
Carry out full investigation into the behaviour that is alleged of the employee including all details and witnesses.
Inform the employee of the nature of the allegations and when appropriate, of the possibility of dismissal due to the disciplinary procedure.
The employee should have the benefit of being heard.
Employees have the right to have a support person or employment lawyer present at the time of the hearing.
Unless the offense is a summary dismissal, the employee has to be warned and requested to stop said behaviour and given appropriate time to improve upon their behaviour before such dismissal. Employee should have assistance as required to change said behavior. If training is required it shall be given. After an oral warning, a formal warning in writing and final formal written warning, employee may be dismissed as the fourth and final warning.
The employee should have the reasons laid out clearly regarding the decisions for dismissal so that they can understand why and recognise that they did indeed have time to change the outcome.
This should be done prior to the dismissal. An employee should have 60 days before dismissal to change their behaviour. They may also require a written statement of reasons and it shall be given within 14 days of the request.
All dismissals shall be done in writing.
Employees may be suspended with full pay pending the results of such an investigation and disciplinary process.
A word of warning about dismissing an employee
Employment law is very complex and needs to be followed exactly as the law states. If there is any deviation, even with the best of intention, then the employer can be liable for wrongful dismissal. So before you undertake any action to dismiss an employee, you are strongly advised to talk to an employment lawyer first.