Ear Nurse Dismissed Less than a Week into Lockdown – BuckettLaw Assists

 

This case was covered in this recent Stuff.co.nz Article.

The Employment Relations Authority awarded Ms Lees $17,000 in compensation, $14,742 in lost income and $66.30 in interest after finding she had been unfairly dismissed from her employment with Triton Hearing. BuckettLaw represented Ms Lees in the proceedings.

Ms Lees, as well as a number of other Ear Nurses across New Zealand, were dismissed on the 30th of March 2020 (5 days into Covid-19 lockdown). The dismissal was communicated by email without any prior notice from the employer that it was even considering making its Ear Nurses redundant. The employer failed to consult prior to reaching its decision to dismiss, a fundamental requirement of New Zealand employment law.

The Employment Relations Authority found the genuine fears the employer held at the beginning of the Level 4 restrictions did not absolve it of its legal obligation to consult with staff prior to reaching a decision. As Triton Hearing failed to consult and provide Ms Lees with information relevant to its decision prior to reaching its decision, the Authority determined the dismissal was procedural and substantively unjustified. The failure to consult also meant it was difficult for the employer to establish there was a genuine basis for the redundancy, especially when the discontinuance of the ear wax removal service (the employer’s basis for the redundancies) did not make up the entirety of the requirements of the Ear Nurse role and the other aspects of the role continued to exist and were now being performed by other staff. The Authority found that a range of possible outcomes (alternative options to redundancy) could have occurred if the employer had consulted, including Ms Lees remaining in employment in a part-time capacity.

The case highlights the importance of obtaining legal advice before acting. In a number of determinations since level-4 lockdown the Employment Relations Authority has clarified that the wage subsidy and Covid-19 generally did not represent a change to the law. Employers conducting a redundancy process during and after level-4 lockdown are required to consult with affected staff prior to reaching a decision about their ongoing employment, to provide all relevant information during the consultation process and to ensure the redundancy itself is genuine. Although there was plenty of confusion and conflicting advice circulating about an employer’s legal obligations during lockdown, what ought to have been clear is that no legislative amendment had been made by the government. The fundamental legal requirements of consultation and provision of relevant information arising from the Employment Relations Act 2000 therefore did not change.

 

Were you dismissed during lockdown without any consultation?

Were you dismissed without first having been provided the relevant information?

Are you an employer that received advice that you weren’t required to consult and provide information?

If you can relate to Ms Lees’ story, or you answered yes to any of these questions, give BuckettLaw a call today. We offer a free 10minute initial call prior to an initial consultation to discuss your matter and in particular to determine whether BuckettLaw can assist.