what can go wrong? personal grievances legal process mediation era employment court who can help?

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Community Law New Zealand / Te Whainga Tika Aotearoa Employment Law: Dispute Resolution

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Page 1: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

Community Law New Zealand / Te Whainga Tika Aotearoa

Employment Law:Dispute Resolution

Page 2: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

OUTLINE

What can go wrong?Personal GrievancesLegal Process• Mediation• ERA• Employment Court

Who can help?

Page 3: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

WHAT CAN GO WRONG?

• Personal Grievance grounds• Breach of contract• Loss of wages

Page 4: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

GROUNDS FOR PERSONAL GRIEVANCE

• Unjustified dismissalo Constructive dismissal

• Unjustified disadvantage• Discrimination• Sexual harassment• Racial harassment• Duress over union membership

Page 5: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

WHEN CAN YOUR EMPLOYER DISMISS YOU?• Serious misconduct• Must be a good reason• Must follow fair procedures

Page 6: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

TEST OF JUSTIFICATION

• Whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

Page 7: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

PROCEDURAL FAIRNESS

• Sufficient investigation • Raised concerns before action• Reasonable opportunity to respond• Genuinely considered employee’s explanation

Page 8: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

CASE STUDY

• David is employed as a secretary at Files and Things Inc. David used to have bleached hair but his new manager Georgina gave him a written warning about his appearance, and he dyed it a natural colour.

• This week, Georgina criticised the way David was talking to clients and told him to “smarten up your act or you’ll be out of here”. David has tried to be more polite to clients but he is unsure what brought on Georgina’s criticism.

• Yesterday, Georgina handed David a final written warning and a dismissal letter. The reason she gave for the dismissal was that “your appearance and attitude are not well-suited to an office environment”.

Does David have grounds for a personal grievance? What are these?

Page 9: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

PERSONAL GRIEVANCES

• Check employment agreement• Raise it• Who is it against?• 90 Days• Outline basis for grievance• Outline solutions

Page 10: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

REMEDIES

• Reinstatement• Lost wages• Hurt and humiliation• Written reference• Agreement not to speak ill of each other• Apology

Page 11: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

REVISIT CASE STUDY

Dear Georgina,

I just wanted you to know that I intend to raise a Personal Grievance. The way you have treated me is completely crap and very unfair and you should not have fired me like you did.

Can we meet to discuss this on Monday at 9am? Please give me a call on (04) 499 2928 to arrange this.

RegardsDavid

What is missing from this personal grievance?

Page 12: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

LEGAL PROCESS

• Talking to employer• Mediation• Employment Relations Authority• Employment Court

Page 13: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

TALKING TO YOUR EMPLOYER

• Cheap and quick• Stay on topic

o Notes

• Support person• Stay calm• Leave if necessary

Page 14: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

MEDIATION

• Don’t need a lawyer o Support person or people may be useful

• Identify issues, points of agreement, find solutions• Can record settlements

o Binding and confidential

• Can reach alternative arrangements• Department of Labour: 0800 20 90 20

Page 15: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

EMPLOYMENT RELATIONS AUTHORITY

• Don’t need a lawyer• File a statement of problem

o Facts causing problemo Steps take to try and solve problem e.g. mediationo What resolution you would likeo Other relevant documentso ERA website: www.era.govt.nz

• Preliminary conferences• The investigative meeting

Page 16: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

EMPLOYMENT COURT

• Lawyer advisable• Stricter rules of evidence• Re-do entire case• 28 days

Page 17: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

OTHER OPTIONS

• Human Rights Commission• Labour inspectors

o Minimum entitlementso DoL: 0800 20 90 20

Page 18: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

WHO CAN HELP?

• Your Community Law Centre• Other local services• Department of Labour

o 0800 20 90 20o www.dol.govt.nz

• Employment Relations Authorityo www.era.govt.nzo 04 915 9550

• Support person

Page 19: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

Community Law New Zealand / Te Whainga Tika Aotearoa

Questions?

Page 20: What can go wrong? Personal Grievances Legal Process Mediation ERA Employment Court Who can help?

This presentation was put together by:Wellington Community Law CentrePO Box 24005, Wellington 6142(04) 499 [email protected]

Please feel free to download, adapt, improve, distribute, remix, tweak and build upon this presentation.

Disclaimer: We’ve made every effort has been made to ensure this information is correct at the time of publication. However, we can’t take responsibility for errors or omissions. Teachers and learners may need to seek specific advice for your particular situation. Where appropriate, we urge you to do so. Visit your local Community Law Centre: www.communitylaw.org.nz

THANK YOU