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.


#NZLEAD PREVIEW: Collaborative leadership

This week’s topic is building on a HRINZ event on Tuesday where Amanda talked about collaborative leadership, social media and the #NZLEAD story.

This video of Seth Godin really sums it up.

We  recommended you have a look at the #NZLEAD tweet stream from this event as we build on this discussion in the tweet chat.

This week’s questions:

Q1) Is collaborative leadership one individual bringing people together or the leadership of the collective?
Q2) What are the implications for businesses and management of a collaborative approach?

Q3) What could collaborative leadership look like within organisations? What is the role of social media in this?

#NZLEAD PREVIEW: Was your sphincter tightened by #HRINZCONF?

There are different expressions for a sense of urgency and pressure associated with doing things in a radically different, or challenging to obtain way. Whatever the term, the metaphor of ‘Friction or Flow? Making the boat go faster’, used as the tag line for the recent HRINZ conference, should also imply a change or re-invigoration of HR practices in a way that is challenging us to improve. Or are we just asking the question: flow or friction? But actually doing nothing about it.

I, personally, was unable to attend the conference due to work commitments. However, we did have #NZLEAD tweeps on the ground and this is a continuation of their discussions at the conference – let’s share the learning.

So, if you were at the conference, I encourage you to take part in this discussion. If you were not at the conference, please ask questions and join the debate to learn what you can. I also encourage you to have a look at the tweet stream from #HRINZCONF.

The questions for this week:

Q1) What things did you learn that made you rethink the way you do HR?

Q2) What will you be doing differently as a result of what you learnt? Why?

Q3) Are we really making the boat go faster or rehashing the same old topics? Why?

Q4) How much are we preparing HR to thrive in a future that cannot be predicted?


Picture from the @HRINZ account that really sums up the last question.