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Being fired unfairly: “Unjustified dismissal”

When will a dismissal be unjustified?

Employment Relations Act 2000, s 103, 103A

If you bring a personal grievance for unjustified dismissal, the ERA will decide the case objectively, by looking at whether your employer’s actions were what a fair and reasonable employer could have done in the situation.

This includes looking at whether:

  • your employer had a good reason for dismissing you (this is called “substantive fairness”), and
  • your employer followed a fair process in dismissing you (“procedural fairness”).

Reasons for a dismissal: What is “substantively” fair?

There can be many valid reasons for dismissing an employee. Whether or not a reason is substantively fair will depend on the particular circumstances.

Reasons for dismissal can generally be grouped into two categories:

  • serious misconduct – this will justify immediate (“summary”) dismissal, which means you don’t work out a notice period and you’re not paid for a notice period (see below), or
  • less serious misconduct – in these cases your employer will usually have to give you warnings and an opportunity to change your conduct or to improve your performance before you can be justifiably dismissed (see: “Examples of less serious misconduct” and “The process: When will a dismissal be procedurally fair?” below).

Examples of serious misconduct

Possible examples of serious misconduct include:

  • fighting and assault – relevant factors to consider here may include:
    • who initiated the incident
    • whether it was assault or just horseplay
    • the result of medical examinations
    • whether there were single or multiple blows
    • whether it was assault or justifiably restraining the other person.
  • direct disobedience – for example, openly and deliberately refusing to obey a lawful and reasonable instruction given by your employer or supervisor or some other person in authority.
  • dishonesty – relevant factors to consider here may include:
    • Was the dishonesty proven or was it only suspected? Suspicion alone is not usually enough to justify dismissal.
    • Was there an inquiry, and if so, was it done fairly and fully? Were you given a chance to explain your behaviour?
    • Was the dishonesty at work or outside work? Whether any dishonesty outside the job will justify dismissal will depend on the nature of your job and whether you occupy a position of trust.
    • Did you lie or did you merely not offer information? Job applicants don’t have to volunteer information (for example, any criminal convictions) that may not be to their advantage, but they can’t provide false information.
  • insubordination – for example, offensive language or publicly criticising your employer.
  • behaviour that seriously endangers the health and safety of others
  • breaching work rules – for example, work rules that bar you from:
    • possessing drugs and other illegal substances
    • being drunk or otherwise intoxicated while working
    • having company property in your possession when you’re not authorised to
    • sleeping at work.
  • disclosing confidential information – you owe a duty to your employer to uphold confidentiality during the term of your employment.

Note: You may be able to release confidential information about your employer if it relates to serious wrongdoing occurring at work (see: “Whistle blower protections”).

Examples of less serious misconduct

Examples of less serious forms of misconduct that could justify a dismissal are:

  • absenteeism (regularly staying away from work without good reason)
  • taking unauthorised leave
  • unsatisfactory work performance
  • sending offensive emails
  • abusive language
  • misconduct outside of work hours (see below about criminal convictions).

What if I have criminal convictions?

If you’re convicted of an offence (like fraud or dishonesty) outside work that damages your employer’s reputation or destroys the relationship of trust and confidence between you and your employer, this could also justify the employer firing you.

If the criminal case is still ongoing, you may have to stand down from your job until the case is over and the outcome is known. Your employer still has to follow a fair investigation process before making any decision to fire you.

The process: When will a dismissal be procedurally fair?

Employment Relations Act 2000, s 103A

Whether your employer followed a fair process in dismissing you will depend on the particular circumstances. The ERA will consider the following:

  • whether your employer adequately investigated the allegations against you (but the Authority will take into account the resources available to the employer)
  • whether your employer’s concerns were properly communicated to you
  • whether you had a reasonable opportunity to respond to any concerns your employer raised
  • whether your employer considered your explanation with an open mind before making a decision.

The ERA won’t find that your dismissal was unjustified just because there were minor defects in the process the employer followed, if these didn’t result in you being treated unfairly.

What if I’m on a trial period?

Employment Relations Act 2000, s 67A

You can’t bring a personal grievance if you’re dismissed during a valid trial period.

For a trial arrangement to be valid:

  • it must be stated in writing in your agreement, and
  • it must be for a specified period, beginning when you start work and lasting no more than 90 days, and
  • your agreement must state that your employer can dismiss you during the trial period and that you’re not entitled to bring a personal grievance or take other legal action in response.

A trial period won’t be valid if you’ve previously been employed by that employer, even if this was only for an hour.

Only “small-to-medium” employers are allowed to use trial periods. “Small-to-medium” means that your employer has less than 20 employees on the day you started the trial period. If there are 20 or more employees, your trial period isn’t valid.

If the trial arrangement isn’t valid, or if you’re notified of the dismissal only after the trial period has ended, you’re treated as having started a permanent employment and you have the same right to bring a personal grievance for unjustified dismissal as any permanent employee.

Note: Working under a valid trial arrangement doesn’t prevent you bringing a personal grievance on grounds other than unjustified dismissal, such as unjustified disadvantage or discrimination. A “trial” period is different from a “probation” period. An employee on “probation” can still bring a personal grievance for unjustified dismissal if they’re dismissed during or at the end of the probation period (see: “Probation and trial periods”).

Can I be dismissed if I’m sick or injured?

You’re legally entitled to a certain amount of sick leave after you’ve worked for your employer for six months (see: “Sick, bereavement and other short-term leave”). However, your employer doesn’t have to keep your job open indefinitely if you’re sick or injured for a long period.

Before your employer would be justified in dismissing you on the grounds of sickness or injury, they would have to consider a number of factors, which may include:

  • the terms of your employment agreement, including any provisions for sick leave and sick pay
  • whether you would have been employed long-term if you hadn’t become ill or been injured
  • the nature of your job – for example, is it a key position?
  • the nature of your illness or injury, how long it has gone on for, and the prospects of you getting better – medical evidence will need to be shown, and the employer must cover the cost (for example, a doctor’s report)
  • how long you’ve been employed – for example, are you a long-standing and valued employee?

If you are dismissed, your employer must follow a fair process – for example, you should be warned that if you don’t return to work your job will be at risk.

What if my employer effectively forces me to resign?

If you’ve resigned from your job in response to the way your employer has behaved towards you, this may amount to unjustified dismissal; it’s known as “constructive” dismissal.

Behaviour by an employer that could amount to constructive dismissal includes:

  • coercion and threats
  • making major changes to your employment agreement without your consent
  • telling you to resign or else be dismissed
  • deliberately following a course of conduct with the intention of forcing you to resign
  • failing to make your workplace safe
  • falsely accusing you of misconduct.

Can a redundancy be an unjustified dismissal?

In some cases, yes.

Redundancy is when your employer decides that your position is no longer needed by the business or organisation. In this case you haven’t been fired – your job has been disestablished.

The question of whether what seems to be a redundancy in fact amounts to an unjustified dismissal depends on whether the decision to make you redundant was one that a fair and reasonable employer could have made in that situation, and whether your employer followed a fair process in coming to this decision. For information about those requirements (see: “Leaving or losing your job”).

Do I have to be given a reason if I’m dismissed?

Employment Relations Act 2000, s 120

If you’re dismissed you can, within 60 days, ask your employer to give the reasons, and your employer must give you reasons in writing within 14 days after your request.

If you’re dismissed during a valid trial period, you don’t have that specific right to require your employer to give you reasons in writing after you’ve been dismissed. However, if you ask for reasons at the time that you’re told of the dismissal, the employer’s duty of good faith legally requires them to provide the reasons, even when you’re a trial employee.

Can I be fired for raising a personal grievance?

Employment Relations Act 2000, ss 103, 103A

No, you can’t be fired for exercising your legal rights to raise a personal grievance.

Your employer must act fairly and reasonably: they must have good reasons for firing you and must have followed a fair process. You should ask your employer for a statement of reasons for your dismissal. This may help you with your case at mediation.

Did this answer your question?

Resolving employment problems

Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Ministry of Business, Innovation & Employment

The Employment website of the Ministry of Business, Innovation & Employment publishes a range of information on employment relations and minimum rights at work.

Website: www.employment.govt.nz
Phone: 0800 20 90 20
Information about resolving problems at work: www.employment.govt.nz/resolving-problems
Early Resolution Service (free phone-based service to resolve issues before they become serious): www.employment.govt.nz/resolving-problems/steps-to-resolve/early-resolution
Free Mediation Services: www.employment.govt.nz/resolving-problems/steps-to-resolve/mediation

Te Kauae Kaimah/New Zealand Council of Trade Unions

Te Kauae Kaimah is the umbrella body for affiliated unions covering every job and industry in New Zealand. It can provide information about which union may cover the type of work you do.

Website: www.union.org.nz
Email: info@nzctu.org.nz
Phone: (04) 385 1334

Labour inspectorate

Labour inspectors monitor and enforce minimum employment conditions. To refer a problem to a labour inspector, you contact the Ministry of Business, Innovation & Employment.

Website: www.mbie.govt.nz/position-descriptions/employment-services/labour-inspector-employment-services and www.employment.govt.nz/resolving-problems/steps-to-resolve/labour-inspectorate
Phone: 0800 20 90 20

Employment Relations Authority (ERA)

If you’re unable to settle at mediation (see under “Mediation of Business, Innovation & Employment” above), the next step is to file your claim in the ERA.

Website: www.era.govt.nz
For contact details in your local area: www.era.govt.nz/footer/contact-us

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