NZLEAD PREVIEW: The current measure for fair and reasonable employment relations process

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.

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