Work Law NZ

Should you go to an employment meeting without representation?

2010-03-30T15:12:00.001+13:00

Except in rare cases, we strongly advise that you have effective representation at any employment meeting that might involve a warning, performance allegations, a threat of dismissal, or other threat to your work or income.

We have many times seen that our involvement has prompted an immediate change in the employer's attitude to the employee. Not only do employers become more polite if we are there, they will treat you less harshly. Our presence can make the difference between a written warning and receiving no warning, or between being dismissed and keeping your job. If the situation warrants it our presence can also facilitate an immediate exit negotiation. In one case, we were called to attend a disciplinary meeting at a well known telecommunications company. From being advised that we were coming to the meeting, the employer realised that it had gone too far and by the time we arrived the meeting had been cancelled leaving our client happy and with no blemish on her employment record.

In another case, a client was facing dismissal from a large utility company as a result of fraud type allegations. We were able to show the employer that the incident was the result of youthful error and not intentional. The client kept his job with a warning on his file for 3 months. Another example was a machine operator who had been called to a disciplinary meeting to discuss workplace fighting. Our client was totally fed up and had his resignation letter in his sleeve when we arrived. We persuaded him to let us do the talking and not to show the letter. We succeeded in getting him an exit package of around two months' wages. Had the client not instructed us, or had he produced the resignation letter, he would have received nothing.

We have many times been told by employers, and their representatives, that if they were ever to find themselves in a difficult situation as an employee that they would call on us. This is the ultimate compliment to our ability to get a good result.

When you consider the financial value of a job, and your future employability, the reasonable cost of having us there with you is a good investment. In most cases we are able to come to workplace meetings at short notice, either during or after work hours. If time is very short we can usually arrange to meet you privately at the workplace prior to the start of the employment meeting in order to go through your case.

Mediation

2010-03-30T14:52:00.000+13:00

The Mediation Service of the Department of Labour is a free, independent service that is available to help resolve any kind of employment relationship problem, including personal grievances. The chance of successfully resolving your problem at mediation is high, even if the employer appears very aggressive or the parties are far apart.

Some employers will refuse to attend mediation. There are simple, cost effective methods that can be used to force them to attend, usually with good results being obtained.

Most mediations last half a day, unless you are still employed with the employer, in which case a day will usually be set aside in case that amount of time is needed.

Most mediations start with the parties in separate rooms. At some point the mediator will usually bring the parties together into one room. It is usual that the employee will get to have their say first. Our usual practice is that we will summarise your case and then invite you to add anything that you feel is appropriate, about the facts or emotions involved, so that you can feel that you have been "heard". We have had some clients who feel uncomfortable speaking and this is okay too. The employer will then respond. After people have had their say, the mediator will usually break the parties back out into their separate rooms and shuttle between them to see if an agreement can be reached. If an agreement is reached a binding written agreement is prepared by the mediator and signed by the parties before they leave.

It is expected that the parties will treat each other with respect at the mediation. Although this is the norm, we have sometimes experienced aggressive lawyers who don't know how to behave at mediation. Our role (and the mediator's), in that situation, is to protect you.

If an agreement is not reached at mediation, it is still possible that this will happen after mediation, or the case may be able to be taken to the Employment Relations Authority for a decision.

In the majority of cases mediation is a positive experience. With most mediations we have been involved with the case from an early stage; however, we have had cases where we have been asked to attend at very short notice. Please contact us to discuss your case no matter when you are going to mediation.

Racial harrassment is a real problem in New Zealand workplaces

2010-03-30T13:53:00.001+13:00

Racial harassment is behaviour or language that directly or indirectly expresses hostility against, or brings into contempt or ridicule, an employee on the ground of the race, colour, or ethnic or national origins of the employee.

Regrettably, we have found that employees born outside of New Zealand are over represented in employment cases. We have had many cases of non European employees who were highly qualified for their jobs but who have experienced being sidelined in their work, or bullying, or other unpleasant behaviour. Sometimes the bullying is from a manager, other times the bullying has come from other employees with the managers turning a blind eye. Sometimes it is obvious that the bullying is directly the result of racial harassment.

Other times it is more subtle, for example, we have met a number of employees who because of their religious convictions don't drink alcohol. Instead of being tolerant of this difference, these employees have been harassed for not joining in with drunken work place drinks get togethers. Subtle discrimination could also occur if a manager demands that an employee works on an important religious holiday when that is not a normal part of their terms and conditions of employment.

You don't have to be a different colour to experience racial harrassment in the workplace. We have had a number of white South African and American clients who have been targeted because someone took a dislike to them in their workplace. Instead of taking the time to sit down and work out how to resolve any perceived differences, the first reaction is often a whispering campaign followed by an attempt to get rid of someone.

Racial harassment is wrong and it is illegal.

If you are racially harassed this will give you a personal grievance claim. The difference from other personal grievance claims is that you will usually have the choice of trying to resolve the problems through the employment dispute channel or through the Human Rights Commission (this choice is also available for victims of sexual harassment and discrimination). We can assist you with either aspect, however, for most cases we recommend taking the employment dispute route as this is usually faster.

What is "unjustified disadvantage"?

2010-03-30T13:25:00.000+13:00

An unjustified disadvantage is an unjustifiable action by an employer which disadvantages an employee in their job or work conditions. There are many possible types of unjustified disadvantage and some examples are as follows:

Suspension from your job.
A verbal or written warning.
Changes to your conditions of employment without your consent - for example: a pay cut or change to your hours of work or holiday arrangements.
The employer telling you what you can and cannot do outside of work hours.
The employer not providing a safe working environment.
Bad treatment of the employee.

If an employee is unjustifiably dismissed it it very likely that they have also suffered unjustified disadvantage, however, there are also many cases of unjustified disadvantage without a dismissal.

Because an unjustified disadvantage is a personal grievance claim it must be raised within 90 days or the right to raise it will probably be lost. We use a range of techniques to resolve unjustified disadvantage claims depending on what has happened and the outcome sought by the employee.

As an example, with unfair warnings, it is normal that we would seek to have these removed from the employment record. If the employee wants to remain with the employer it would also be usual to seek payment of legal fees, some compensation, and an apology. If the employee feels they no longer have faith in their employer, or if it appears that the employer is seeking to force the employee out, the goal is generally to obtain a dignified exit package on the best possible terms whch would include money as well as non financial items like a reference, confidentiality, and fixing the employment file.

Please contact us if you would like to discuss your own situation.

Unjustified dismissal

2010-03-30T10:08:00.001+13:00

If a person is dismissed unjustifiably they will have a personal grievance claim against their employer. A dismissal is unjustified if the employer does not have a good reason for the dismissal and/or if the employer gets the procedure wrong.

An example of a bad reason for a dismissal is because the employer does not like the employee's race or religion. An example of faulty procedure is an employee caught red handed stealing from the employer, and the employer, in a rage, fails to give the employee a chance to put their side of the story before the dismissal decision is made. There are many other examples that can be given.

A redundancy can also be an unjustified dismissal. An example of faulty procedure causing a redundancy to become an unjustified dismissal is the employer announcing a redundancy to employees without first going through a genuine consultation with them about the proposals. Even if the redundancy itself was genuine the faulty procedure would usually create a personal grievance against the employer.

An example of a redundancy being unjustified on the grounds of substance (i.e. bad reasons for the dismissal) is if the employer wants an employee "out" and they dress up the dismissal as a sham redundancy.

A forced resignation may also be an unjustified dismissal. This situation can arise if the employer follows a course of conduct aimed at coercing the employee to resign (for example if the employer allows a bullying campaign against the employee), or if the employee is told to choose between resigning and being dismissed, or the employer breaches its duty to the employee leaving the employee no choice but to resign.

In order to not lose your legal rights it is usually essential that the personal grievance claim is raised within 90 days (not 3 months).

Please contact us if you are concerned about your own situation or if we can help in any way.

Employment agreements

2010-03-29T11:43:00.000+13:00

We offer an employment contract review service, for employees, at a minimal cost. The cost is $130 for a review and report to you by email, or $150 for an in person meeting with a verbal report.

All employees must have a employment contract. The employer must give you the opportunity to seek legal advice on the proposed agreement.

We often find problems with employment agreements. Problems come in all shapes and sizes and include lengthy and unfair restraint of trade clauses (these could prevent you having an income for months after you finish with that employer regardless of whether you resign or are terminated), unfair redundancy compensation, the employment agreement being unfairly one sided in favour of the employer, the agreement not actually recording what you thought you were being offered, and inconsistencies in the agreement that make it unworkable for both parties.

In our experience, if the agreement is brought to us when you have been offered a new job or new agreement, most employers will be happy to accommodate any reasonable suggestions for change. Even if nothing needs to be changed (and this would be unusual) you will have the peace of mind of knowing that you are protected, both now and if things change in the future.

Employers who don't do deals

2010-03-29T11:24:00.000+13:00

Some employers are very difficult to negotiate with. These employers tend to fall into three different categories:

Smaller employers who arrogantly believe that they can do whatever they like as it is their company. We find that these employers almost always change their tune at mediation as the independent mediator will explain their risks if they don't settle.
Certain large employers who refuse to settle as a matter of principle. We know who most of these employers are and we are experienced in dealing with them. Often these employers are generous with non financial aspects of a settlement (for examples, references, employee assistance programmes and allowing time off for a job hunt); however, obtaining a financial settlement requires different techniques from that required for most employers.
Government departments and similar unusually sensitive employers. These employers tend to fear cash payouts as they may be disclosed in public records which risks causing embarrassment to the relevant Minister of Parliament or Board of Directors. There are ways around these issues that achieve an employee's need to exit, with a financial settlement, while protecting the employer from embarrassment. One possibility is that an employee could, by agreement, remain on the payroll while not actually working with the employer any longer. Over a period of time the employee receives their payout without any embarrassing blips in the accounts. There are also other ways to achieve a win win solution.

Please contact us if we can help in any way.

Settlement expectations

2010-03-29T09:02:00.000+13:00

For most cases of unjustified dismissal, the very most that the employee can expect to receive if they take their case to the Employment Relations Authority is up to three months loss of pay (or the actual loss if this is less) plus a tax free award for hurt and humiliation (the average is around $7,000) plus a contribution towards legal costs. There are some cases where more can be awarded and we have certainly been successful in obtaining far higher negotiated settlements, however, the general maximum must be kept in mind.

If the employer is receiving competent advice they will also be aware of these figures. In our experience if an employee asks for a settlement well in excess of the general maximum (for example a full year's loss of wages or salary) this may cause settlement negotiations to break down as it shows that the employee is unrealistic resulting in the employer seeing no possibility of a successful negotiation and/or that the employee has an incompetent adviser.

We have negotiating techniques that will assist in obtaining the maximum realistically possible and we are able to assess if a case is one that can realistically expect to receive a settlement above the usual range. We can more easily assist you to obtain an above average settlement if you involve us at an early stage. Involvement at an early stage gives more flexibility to both sides to negotiate a settlement that in dollar amounts is higher than could be expected at the ERA and/or to maximise the tax free part of the settlement without causing IRD problems.

When is the best time to seek help?

2010-03-26T13:36:00.000+13:00

Employment relationships don't usually break down overnight. From an employee's point of view problems often start with unfair criticism, bullying, being kept out of the information loop, harsh performance management or reviews, or just a feeling that their manager doesn't like them. It is important to trust your intuition. If you feel that someone is out to get you or doesn't like you, then your feeling is probably accurate. Rarely do unhappy situations get better by themselves.

It is wrong for an employee to be treated unfairly but it happens all the time. In order to resolve an unpleasant situation, in the best way possible for you, legal assistance is required. Some people delay seeking legal assistance as they worry about costs or they hope that the situation will go away. By delaying, you greatly increase the risk that the employment problem will cause you serious stress and you risk lessening your bargaining power.

Think about this issue from the employer's perspective. If they have an employee, that they want out, they will be more likely to pay willingly and quickly for that result if they are approached early on as they can then secure the outcome they want without being sued. In exchange, the employee gets to leave with dignity, the highest possible cash outcome, and references as things have not gone on too far. If the employee delays seeking help until after they have been dismissed, the employer has far less incentive to settle promptly and at an above average level as they can sit back and wait for the employee to pursue the claim. We have been involved in many cases where we have secured a cash outcome of many tens of thousands of dollars through an exit negotiation as the employer was so keen to get rid of the employee without a fuss. The employee is also much more likely to face time out of the workforce if they are dismissed, rather than seeking an agreed exit.

If you have a claim you should not be put off pursuing it as it is still worthwhile, however, if you have the choice, sooner is better than later. Please contact us if we can help.

No win no fee

2010-03-25T16:55:00.000+13:00

We offer no win no fee in some dismissal cases (employees only). In order to assess a case, we require a first consultation which costs $150 (or $130 if by email). During that consultation we will gather full details of your case and advise you on the strengths of your case, the options available to you, and the settlement expectations. We will then assess whether we are able to offer you no win no fee.

If we are unable to do so we will offer a very competitive hourly rate and we are happy to consider payment arrangements.

Negotiating style can make or break your settlement

2010-03-24T16:53:00.002+13:00

We have dealt with lots of different types of lawyers and employment advocates, acting for the other side, in employment disputes. We have been able to observe the styles of negotiation that promote or prevent a settlement that is fair for both sides.

Employment law is not like any other type of law and the style required is also different. Many lawyers (and a few advocates) believe that they must act in a mindlessly aggressive manner and not let their client yield an inch (even if their client has a very poor case). This style of negotiating prolongs the case, and increases their client's costs and stress, leaving their client worse off in the long run. Sometimes these unhelpful lawyers take this style to mediation. Such a style is not appropriate for mediation which is supposed to be approached in good faith. Not only does a mindlessly aggressive negotiating style tend to get everyone's backs up (including the mediator) it also signals that the lawyer doesn't know what they are doing.

We are quite capable of being aggressive when required, however, when it comes down to the actual negotiations we find that, in most cases, the most effective style is to be professional and businesslike so that the other side feels that we understand where they are coming from (even if they are completely in the wrong). We do this while maintaining a strong stance to protect our client. This approach builds empathy and promotes the other side's wish to settle fairly and promptly.

If we can settle our client's case at a level similar to what they could expect to receive if the case went on to the Employment Relations Authority, but without the costs and delays of having to take that step, then that means that we have done a good job. Very few of our cases have to go to the ERA in order to get justice for our clients.

Make sure that you seek competent help

2010-03-23T14:05:00.000+13:00

Employment law is a specialised area. We have many times seen examples of employers and employees making dreadful employment law mistakes by taking advice from well meaning friends, or from lawyers who don't know what they are doing. For employers taking the wrong advice (or no advice) can mean that they create a situation where they can be sued successfully. For employees the wrong advice (leading to the wrong thing being said) can cost them their job and any chance of a claim. For both parties, unskilled legal advice can cause an unrealistic view of that person's chances of success or settlement expectations, resulting in the process becoming hugely and unnecessarily drawn out and expensive.

We have seen employees who have been advised by bad lawyers that they should hold out for 12 months loss of earnings. Except in very rare cases, such an expectation is completely unrealistic. We have also seen cases where employers have been given incompetent legal advice that they don't have to worry about the process adopted in firing an employee. Getting the process wrong is enough in itself to cause an employer to lose its case.

Someone with an employment law issue needs advice they can rely on with regard to the strength of their case and settlement expectations. Without this knowledge how will you know if an offer of settlement is any good and how long to let the case go on for?

We offer competent, experienced legal advice, at a fair price. Others offer competence too. If you don't want to talk to us, but competence is important to you, we suggest talking to a specialist employment law firm or employment law advocate, a specialist employment law barrister or a very large legal firm with a good employment law team.

Mental health and employment law problems

2010-03-23T13:49:00.001+13:00

We act for employees with employment law problems. Some have been dismissed. Others are deeply unhappy in their workplace as a result of unfair treatment or being forced out, bit by bit.

A common theme we see is that employees are often so stressed that they have sought medical help. We are used to seeing employees who have been prescribed antidepressants or who are having counselling because things have become overwhelming at work. Often the stress impacts on our clients' marriages.

Merely taking the step to see us means that a load is taken off your shoulders. Not only does this immediately lessen the stress, our advice will show you that, no matter what it is that has happened, that there is a way out of your current situation and a better future. For many people this will mean exit negotiations or mediation to find a good resolution. However, if it is important to you to keep your job and to make your workplace a more pleasant environment, we also have the tools to help to achieve this for you.

If we can help please don't hesitate to contact us.