Are you involved in a dismissal, redundancy, disciplinary hearing, suspension or an investigation? Are you dealing with reinstatement of employment, compensation for losses or defending an action by your employer or employee such as enforcing a restraint of trade or for damages?
In each case there are processes to be followed. This process must be procedurally fair, and includes access for the employee to information used to make the decision, the right to answer any allegation and a lack of predetermination. In a redundancy the process must be seen to be genuine, not an attempt to dismiss an employee, information must be provided, the employee must be heard and re-employment must be considered. We can help with these processes.
We recognise how stressful these situations are for those involved and with skilled and experienced help many matters can be resolved at an earlier stage. Please contact us to discuss your circumstances and to make an appointment.
Most often there is an initial meeting. It is at this stage that we would like to be involved to enable the greatest opportunity for early resolution and to optimise the outcome.
An employee who considers that they have been treated unfairly may lodge a grievance and could seek reimbursement for three months lost wages or longer, reinstatement to their former position, a penalty for breach of the employment agreement, compensation for breach of duty of good faith and a contribution towards costs.
If the matter does proceed further notice of a grievance will be required and in most cases must be given within 90 days of the event which gives rise to the grievance.
If a grievance is not lodged within that time frame then it may be difficult or impossible to raise.
If not settled once a grievance has been filed most matters proceed to the informal mediation process encouraged by the Employment Relations Authority in an effort to reach early resolution. A mediator may record an agreement, identify and work through areas of disagreement, propose ways to resolve the issues and if all parties agree settle the matter. Settlements are binding and usually confidential to the parties.
Employment Relations Authority
The Employment Relations Authority makes decisions as to the law and facts in employment relations disputes. The Authority must also consider whether mediation will still be helpful, and can refer parties back to mediation. The hearing is more informal than a court hearing but involves taking evidence from the parties or anyone else who has provided a statement and is present. The ERA may ask questions of the parties, determine the issues and provide a judgment.
Duty to Mitigate
There is a duty on the employee to mitigate their loss, that is, avoid any loss that they may otherwise suffer. An employee should therefore actively seek work if they have been dismissed.
Any award of damages may be reduced to the extent that the employee has responsibility. If the employee has contributed to their loss then this may result in a percentage reduction of the award.
An ERA decision may be appealed, and re-heard in the Employment Court. If either party wishes to challenge a decision of the Employment Relations Authority that must be filed within 28 days from the date of the decision. Please note this is not the date received.
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