Unjustifiable dismissal

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Every year, the Employment Relations Authority (ERA) handles and deals with cases, resolving workplace issues between employers and employees. Some of these cases revolve around unjustifiable dismissal.

Employees can claim unjustifiable dismissal if they have been fired or made redundant in an improperly handled manner and process. An employee may claim their dismissal was unjustifiable if they can show they were dismissed and they believe that:

  • the employer did not have a good reason to dismiss them, or
  • the process was unfair

A dismissal must be for a good reason and be carried out fairly otherwise the employee may have a personal grievance claim.

What is a personal grievance claim?

An employee can bring a complaint against a current or former employer. Personal grievance is a type of complaint they may bring. Employees can bring a personal grievance for several reasons including unjustifiable dismissal, discrimination, harassment (racial/sexual) or unfair treatment. These claims are handled by the ERA and they look at cases objectively, reviewing them in the context of your situation.

What is a fair process?

What is fair depends on the particular situation in question. Any relevant provisions in your employment agreement and workplace policies or processes must be followed. If the workplace does not have guidance or policies in place, then the test will be: what could a fair and reasonable employer have done in the circumstances? For example, if an employment agreement does not have a specific notice period, then reasonable notice must be given by the employer.

What is good reason for unjustifiable dismissal?

Reasons for dismissal can include:

  • disciplinary process or action
  • employee performance issues
  • workplace changes
  • bullying, harassment and discrimination

If you dismiss an employee, then they have the right to ask for a written statement outlining reasons for dismissal.

When can the request be made for a written statement?

A request can be made by the employee for a written statement. This request can be made up to 60 days after they hear about the dismissal. Employers must provide this written statement within 14 days of such a request. Failure to provide a written statement may result in the employee raising a grievance based on certain situations.

What are some of the common mistakes made by employers when carrying out a disciplinary or dismissal process?

  • Conducting interviews or collecting feedback in an unfair manner, that may be biased or inaccurate
  • Making decisions based on feelings and opinions rather than facts
  • Not reaching out to all relevant people or excluding some people on purpose
  • Waiting too long after an incident to interview employees, so their recollection may not be fresh
  • Treating an employee differently compared to others who have acted the same
  • Not explaining the process, the reason for the process to the employee
  • Not giving appropriate amount of time to the employee to get advice and prepare a response
  • Not considering employee explanations of their behaviour/incident
  • Coming to the disciplinary meeting with a predetermined decision and letter

The process will differ based on your situation but in all cases it is imperative to carry out a fair process. The steps for these processes will also be written in the employment agreement or workplace policies.

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