Failure To Consult

October 27th, 2020

A Sure Fire Road To A Personal Grievance

If an employer is considering making a change, their first step is to refer to the employment agreements and workplace policies in place, since these set out the basis for the employment relationship and the process for changing its terms.

As a general rule, contractual terms cannot be varied without the consent of both of the contracting parties. An employer has the right to manage his or her business and the line between the employer’s right to manage, which does not require the consent of an employee (but does require consultation), and a variation of contract, which does require the consent of an employee, can sometimes be hard to draw.  Certain terms and conditions are more protected than others – for example, the wage to be paid and hours of work are clearly important terms of the agreement and the employer cannot unilaterally reduce the employee’s wage rate or hours of work.

Any such changes require additional good faith or other process arrangements, including consulting with employees and their representatives, providing time to respond to proposals and considering their comments.  Any agreed change to the employment agreement should be recorded in writing. Remember, having the agreed terms and conditions in writing is a legal requirement, whether the change is temporary or permanent.

Employers who follow a careful change process will reduce their chances to claims of:

Where an employer does not follow the rules of good faith an employee may take a personal grievance. Where the Employment Relations Authority or the Employment Court find that good faith rules were not followed by the employer then they may award a penalty for a breach of good faith.

This was recently the case whereby an Auckland supermarket worker was awarded $24,557 for unjustified dismissal after her former boss changed her hours without consulting her – read more about this case here

Should you need to make changes to an agreement, or you feel that you may have been treated unfairly as an employee, we can help.  Contact us for a confidential discussion.

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