Every employer will need to dismiss an employee at one point or another, but ensuring it is done in a fair and reasonable manner is another story all together. In New Zealand we have the Employment Relations Act which provides protection to both employees and employers on all aspects of the employment relationship. When it comes to dismissing employees, employers need to look closely at Section 103A of the Act which provides a justification test used by the Employment Court to determine what a ‘fair and reasonable process’ is.
Even when an employer has sufficient reason to terminate employment, one misstep may result in a personal grievance claim before the Employment Court from the employee (eg. unjustified dismissal). As outlined by the Act, the measure (or test) is 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 of dismissal. In measuring the employer’s process, the Employment Court applies the test under Section 103A, to apply the test, the Court must consider:
(A) whether, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
(B) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
(C) whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and
(D) whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
Recent case law has found that employers are not meeting all parts of the test and this is proving costly as wins are being handed to employees where a personal grievance has been raised.
Questions for this week:
Q1) Is the justificaiton test clear enough on the expectations for employers during a dismissal process?
Q2) Is there anything missing from this test that might help employers during this process?
Q3) Is the justification test still relevant in today’s employment world?
Q4) What is your key step when going through a dismissal process?
About the Author: Tash Pieterse
TashTash is a passionate and enthusiastic HR Generalist with a special interest in Employment Relations. She is currently working in the public sector, gaining a strong background in New Zealand legislation and HR practices. Tash frequently blogs on her HR career experiences and is actively building a presence and following on Twitter. She is a strong networker who enjoys connecting and developing ideas with various thinkers around HR, social media and organisational change. She is a Community Leader with #NZLEAD, connecting a community of passionate HR professionals from NZ and around the world. Tash has been a past elected member of the HRINZ Branch Committee and has travelled to the UK to further her links with the HR community through her connections on Twitter and through #NZLEAD.
In two weeks I have the pleasure of experiencing New Zealand for the first time, when I speak in Auckland at the Recruiter Hub Conference (#RHUBNZ). I am going to cover two interlinked subjects during the course of the day.
The first – The Future Of Recruitment Is Closer Than You Think – is one of those subjects that many recruiters choose to ignore. Analysts the world over, cite ‘big data’, mobility trends, ‘talentism’ as well as many other considerations, companies need to act upon with regards to recruitment. But I believe there is a ‘future reality gap’ for recruiters who have their ‘day job’ to do – recruiting for their clients. They are not worried about things that ‘might’ impact them next year or in three years time – they have problems on their own desks right now. Can you blame them?
Then I take a look at one of the new skills that needs to be embedded in future recruiters – Why Candidate Engagement Is More Than Just Being A Connection Or A Follower. It is all very good having the ability to find loads of potential candidates – but what do they represent most of the time? A longstanding record in a database, a name on a social network or just a name you have uncovered in a conversation? These are now available to anyone (who chooses to make the effort to find them) – including your clients and your competitors.
Questions for this week:
Q1) What does the future of recruitment look like? Is it really in the future or here and now? Why is there a gap?
Q2) How are you utilising technology in recruitment?
Q3) How does technology change the way we engage with candidates? How does this meet the needs of the candidate?
Q4) What does the successful recruiter of the ‘future’ look like? How are these skills going to help with sourcing scarce talent?
Your employment brand includes everything from your people, your physical premises, your culture, and making sure candidates have a great experience through your recruitment process. It is not just about the marketing of these things though. Having an external brand that reflects the internal message is crucial.
If your brand is not consistent with your internal culture then this mismatch can create more problems than it is worth. The consequence of this can be high turnover with new employees and low engagement with existing employees. Your current employees could also consider it a bit of a farce and this is not great for your reputation, particularly if you don’t have the best internal culture. Flip that over though, you can also have a great internal culture but are not leveraging it to its full potential.
So how do you create congruence between your internal culture and your external brand? Well you can partner with marketing or take this on yourself (add another skill to the already wide HR repertoire?). But do this to add flare to what you already have rather than create unrealistic spin. You don’t have to be too out there. Own your brand, and keep it authentic and transparent.
One of the ways to create transparency is to give potential candidates greater access to your organisation throughout the recruitment process. Let them see what your organisation is really like, warts and all, before making a decision. Having a good internal culture is a good start (you can read the blog on LikeMinds on this topic here).
Unsuccessful job candidates can also be brand ambassadors. Consider the impact on your brand by not getting back to candidates. Lack of time and resources is not an excuse when brand value is accounted for. If you are getting too many candidates is your recruitment message the right one?
In this respect, recruiters should understand the whole business including the brand and culture and be able to accurately articulate that to potential employees. Have you seen any examples of employers who do this really well? Or not so well?