When your employer ends your job, NZ law requires them to do it a certain way.
In simple terms, they need to have two things in place:
- Substantive justification
- Procedural fairness
Substantive justification, is having a proper basis for the decision to end your employment.
There needs to be adequate and appropriate evidence/information collected by the employer, from which a theoretical fair and reasonable employer could decide, in all the circumstances, to end your employment.
That requirement is the same for all reasons for ending your employment, from poor performance, through to serious misconduct.
The type of information required can change though.
The short point is, if you can either show that the decision was in fact wrong (e.g. the behaviour alleged actually did not happen), or that your employer did not have evidence/information from which a fair and reasonable employer could have made the decision, then you can probably show that the end of your employment lacked substantive justification.
Procedural fairness is more or less what it sounds like. The employer has to have followed a fair process to reach its decision.
Generally speaking, the employer should have:
- Raised as early as possible with you, their concern (in the case of poor performance, or misconduct) or proposal under consideration (in the case of redundancy)
- Provided to you as early as possible all relevant information available to them, relevant to the matter.
- Provided you with sufficient time to obtain advice, and representation.
- Genuinely considered all your feedback and comments together with the available information and evidence, and without any bias.
- Advised you in writing of their decision.
If that sounds like a lot, it is – and it’s only a summary!
Right or wrong, ending someone’s employment can be difficult to get right.
That means that if you are looking at being out of work without income for some time, or even are just feeling hurt and humiliated by the process and decision, there is a reasonable chance you have a right to bring a claim against your ex-employer.
While there are no guarantees in resolving employment disputes, a successful outcome could just help to make a hard period of time in your life easier to deal with.
So, if you have lost your job for some reason, and you think your ex-employer has gone wrong in terms of one, some, or all, of the requirements we have set-out in this article, please feel free to get in touch and see if we can help you try to put it right.
If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry Law who normally advises you, or alternatively contact:
Wallace Revell
WRevell@farry.co.nz
09 353 6672
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry Law does not accept liability for any errors it may contain.