Our employment law specialists work with employers to ensure all their disciplinary and redundancy processes are lawful.
We also advise employees who require assistance or advocacy during a disciplinary or redundancy process, or if they wish to raise a personal grievance.
New Zealand law allows employees to end their employment, at any time, by them giving a notice period as specified in their employment agreement. Notice periods are usually one-to-four weeks but can be longer.
In contrast, employers are not allowed to terminate employment unless they have valid reasons and follow appropriate procedures.
There are three valid reasons:
- Dismissal for misconduct.
- Dismissal for poor performance.
Dismissal for misconduct
Employers may dismiss employees for misconduct, so long as they follow an appropriate process, including a fair investigation and disciplinary process. Failure by the employer to follow an appropriate process may enable the employee to successfully pursue a personal grievance by claiming the dismissal was unjustifiable, or that the employer has failed to act in a procedurally fair manner.
Misconduct includes activities such as unsafe behaviour, misuse of the internet, breaching confidentiality, or breaching an employment agreement.
In a case of serious misconduct, an employer may have the right to dismiss an employee without giving them notice or paying them out instead of notice. Misconduct can be considered serious if it undermines or destroys the trust and confidence placed in the employee by the employer. Examples of serious misconduct include physical assault, theft, fraud, sexual harassment, and illegal drug-use at work.
Although an employer may be entitled to dismiss an employee for serious misconduct with immediate effect, they still have to follow an appropriate process.
Dismissal for poor performance
Employers may also dismiss employees for poor performance. As with dismissal for misconduct, it is very important that the employer follows an appropriate process, or they risk the employee successfully raising a personal grievance.
To dismiss an employee for poor performance, the employer must:
- Place the employee on notice in writing, stating the reasons why the employee’s performance is deficient.
- Obtain the employee’s feedback.
- Provide sufficient support to the employee, with a performance management plan over a defined timeframe, to help them improve their performance.
- Repeat this process two or more times to ensure the employee has had sufficient opportunity to improve their performance to an acceptable level before the employer dismisses the employee.
Employers may terminate an employee’s employment based on redundancy, so long as it justified, and they follow a fair process. Most redundancies can be justified on economic grounds such as that the organisation is being restructured to improve efficiency, or that a part of it is being sold.
Regardless of the reasons for making an employee redundant, the employer must follow an appropriate procedure, including:
- Giving the employee reasonable notice of the intention to make their role redundant.
- Allowing the employee opportunity to respond with suggestions as to how their role could be retained, or how they can be redeployed in the organisation
- Considering alternative options such as redeployment, but failing that, giving notice to the employee that their role is to be disestablished, and a notice period as defined in the employment agreement. The employer may choose for an employee to work through the notice period or pay them out instead.
Contact us if you have any questions regarding dismissal, redundancy or organisation restructures. We offer a free initial consultation, and our fees for further work are based on our competitive fee structure, and the time we spend assisting you.