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A recent judgement by the Employment Relations Authority has ruled that Defence Force New Zealand unlawfully dismissed an employee and was instructed to award $25,000. (https://www.stuff.co.nz/business/industries/123266571/defence-force-ordered-to-pay-25000-for-constructive-dismissal?cid=app-iPhone)

The employee was unlawfully dismissed by way of serious misconduct, and the contributing investigation report identifying that there were issues regarding the employees’ approach to a matter that had also been an issue in the past.  These alleged issues were never acted upon and the employee was therefore never able to provide any explanation or given the opportunity to modify/correct her behaviour.  The employer also utilised a Defence directive rather than follow a fulsome process.  The employee raised a personal grievance (PG) on the basis that she was constructively dismissed and the ruling was in her favour.

We say to employer’s and opposing parties time and again that an employer cannot capitalise on their own failure to act.  If you utilise a performance management or ill-defined/unwarranted disciplinary process to move an employee on, it is rarely going to end well for the employer in the event of a PG being raised.

Our offices are seeing an uptick in personal grievances being raised whereby employees are being catapulted into an investigation or performance process without warning or appropriately defined terms of reference. We are also seeing lack of triage of issues and a woeful lack of feedback between employers and employees.

This comes back to such simple tools – systems and communication.  It is not reasonable to impose a PIP on a person who had no prior knowledge of unsatisfactory performance.  It is not reasonable to dismiss someone who has taken an action that has never been raised as an issue previously (despite being routinely carried out).  Additionally, misconduct cannot normally be misconduct where an employee is not aware that the conduct is wrong.  As such, employers need to be timely in conveying their concerns to employees and keep detailed records of these conversations.   In most cases, employees need to be afforded the opportunity to modify their actions to meet their employer’s requirements.

If you need assistance in conducting a robust process or are concerned that you have been treated unfairly, contact us for an obligation free discussion.