what can go wrong? personal grievances legal process mediation era employment court who can help?
TRANSCRIPT
Community Law New Zealand / Te Whainga Tika Aotearoa
Employment Law:Dispute Resolution
OUTLINE
What can go wrong?Personal GrievancesLegal Process• Mediation• ERA• Employment Court
Who can help?
WHAT CAN GO WRONG?
• Personal Grievance grounds• Breach of contract• Loss of wages
GROUNDS FOR PERSONAL GRIEVANCE
• Unjustified dismissalo Constructive dismissal
• Unjustified disadvantage• Discrimination• Sexual harassment• Racial harassment• Duress over union membership
WHEN CAN YOUR EMPLOYER DISMISS YOU?• Serious misconduct• Must be a good reason• Must follow fair procedures
TEST OF JUSTIFICATION
• Whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
PROCEDURAL FAIRNESS
• Sufficient investigation • Raised concerns before action• Reasonable opportunity to respond• Genuinely considered employee’s explanation
CASE STUDY
• David is employed as a secretary at Files and Things Inc. David used to have bleached hair but his new manager Georgina gave him a written warning about his appearance, and he dyed it a natural colour.
• This week, Georgina criticised the way David was talking to clients and told him to “smarten up your act or you’ll be out of here”. David has tried to be more polite to clients but he is unsure what brought on Georgina’s criticism.
• Yesterday, Georgina handed David a final written warning and a dismissal letter. The reason she gave for the dismissal was that “your appearance and attitude are not well-suited to an office environment”.
Does David have grounds for a personal grievance? What are these?
PERSONAL GRIEVANCES
• Check employment agreement• Raise it• Who is it against?• 90 Days• Outline basis for grievance• Outline solutions
REMEDIES
• Reinstatement• Lost wages• Hurt and humiliation• Written reference• Agreement not to speak ill of each other• Apology
REVISIT CASE STUDY
Dear Georgina,
I just wanted you to know that I intend to raise a Personal Grievance. The way you have treated me is completely crap and very unfair and you should not have fired me like you did.
Can we meet to discuss this on Monday at 9am? Please give me a call on (04) 499 2928 to arrange this.
RegardsDavid
What is missing from this personal grievance?
LEGAL PROCESS
• Talking to employer• Mediation• Employment Relations Authority• Employment Court
TALKING TO YOUR EMPLOYER
• Cheap and quick• Stay on topic
o Notes
• Support person• Stay calm• Leave if necessary
MEDIATION
• Don’t need a lawyer o Support person or people may be useful
• Identify issues, points of agreement, find solutions• Can record settlements
o Binding and confidential
• Can reach alternative arrangements• Department of Labour: 0800 20 90 20
EMPLOYMENT RELATIONS AUTHORITY
• Don’t need a lawyer• File a statement of problem
o Facts causing problemo Steps take to try and solve problem e.g. mediationo What resolution you would likeo Other relevant documentso ERA website: www.era.govt.nz
• Preliminary conferences• The investigative meeting
EMPLOYMENT COURT
• Lawyer advisable• Stricter rules of evidence• Re-do entire case• 28 days
OTHER OPTIONS
• Human Rights Commission• Labour inspectors
o Minimum entitlementso DoL: 0800 20 90 20
WHO CAN HELP?
• Your Community Law Centre• Other local services• Department of Labour
o 0800 20 90 20o www.dol.govt.nz
• Employment Relations Authorityo www.era.govt.nzo 04 915 9550
• Support person
Community Law New Zealand / Te Whainga Tika Aotearoa
Questions?
This presentation was put together by:Wellington Community Law CentrePO Box 24005, Wellington 6142(04) 499 [email protected]
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