Frequently Asked Questions about No-Win-No-Fee employment law

FAQ

About Us

What is no win no fee?

No Win No Fee literally means if we don’t win you don’t pay a fee. When you have lost your job or are faced with the prospect of losing your job because of a situation that has arisen with your employer it’s the least likely time you will be able to afford a lawyer.

If there are occasions that we will charge you an hourly rate we will let you know.  For example, If we need to attend your disciplinary meeting if you are wanting to save your job we do charge a meeting fee of $250+gst per hour.

What happens if you lose a no win no fee case?

If you lose you will not have to pay a fee. Because we don’t get paid for our time and efforts if we don’t win we don’t take on a case if we don’t think it will be successful.

Are you employment lawyers?

All our Employment Advocates are Employment Law specialists. Some have Law Degrees and some come from an HR background.  All are experts in Employment Law.

What is an employment advocate?

An Employment Advocate is like an Employment Lawyer.

We are legal and human resources experts who know employment law like the back of our hands.

We can defend you in your workplace and all the way to the employment court if necessary.

Employment Advocates either hold law degrees or HR qualifications.  Our Advocates are ALL specialists in Employment Law.  We are fully equipped to help with any Employment Relationship Problem you are facing.

Are you funded?

No we are not funded  

We are careful what cases we do which is why we give a free consultation over the phone as our first point of contact.  We carefully consider the facts before we agree to take your case on a no win no fee basis.  Sometimes we need to charge an hourly rate but we always let you know straight away whether it is no-win-no-fee or hourly rate so there won’t be any surprises.  Most of the time we can get your employer to contribute to your costs, and what we can’t get your employer to cover we take as a percentage of what we win for you. More details on our fees page.

Bullying

Am I being bullied?

A lot of behaviour by our boss or colleagues may feel like bullying.  A lot of this “bullying” could also be described as unpleasant behaviour, this can cause a lot of stress and even anxiety but it might not be bullying.

Bullying is:

  • Repeated
  • Unreasonable, including: humiliating, intimidating or threatening a person
  • Harassment, discrimination or violence

Bullying is not:

  • Occasional rudeness or one off incidents of unreasonable behaviour
  • High performance standards
  • Constructive feedback or advice
  • Requests for extra work to be done\Warning or disciplining workers according to the code of conduct
  • An argument or difference of opinion (as long as it doesn’t become aggressive)

 

What do i do if i am being bullied at work?

You should find out if there are any workplace policies or processes for reporting bullying and follow these. There may be specific and trained people in your workplace who know how to deal with these issues in a sensitive way.

If there is no set process or procedure you should do the following:

Make a note every time something happens. Notes should record dates and times, and what was said or done, who was there, and how it made you feel.

You will then need to make your employer aware of the situation
Ideally you would raise the issue in writing.

Who do I raise it with?
It depends on who is bullying you. If it is another employee, you should first raise the matter with your manager or supervisor, or the next level of management if the offender is your manager.

If the person who is bullying you is the Owner of the company, or the manager and there is nobody else to tell you can call us on 0800NOWINNOFEE and we will advise you or assist you.

What should happen after I report that I am being bullied?

After receiving your complaint the business should:

  • Support you and the person you have complained about
  • Decide on a plan for investigation, including possibly suspending the person who is being investigated
  • Give guidance on how to continue to work with the person
  • Report back to you about the steps that have been taken
I reported the bullying and now things are much worse! What do I do now?

Sadly this is what sometimes happens.  You have done the right thing by reporting the issues because that makes it easier for us to help you.  Give us a call as soon as possible and tell us what’s happening and we will try to help.

No Win No Fee

What happens if you lose a no win no fee case?

If you lose you will not have to pay a fee. Because we don’t get paid for our time and efforts if we don’t win we don’t take on a case if we don’t think it will be successful.

Personal Grievance

What is a personal grievance?

A personal grievance is when an employee brings a formal complaint against their current or former employer.  An employee has 90 days to raise a personal grievance.
To raise a personal grievance after the 90 days there would need to be exceptional circumstances.

What qualifies as a grievance?

Employees can bring a personal grievance for the following complaints:

  • Unjustifiable dismissal (unless the dismissal took place while the employee was on a valid 90 day trial period)
  • Discrimination
  • Sexual harassment
  • Racial harassment
  • Bullying where the employee has raised the issue and not received a response or adequate action
  • Restructuring causing redundancy without correct process
  • Disadvantage to an employee due to the employment agreement not meeting legal requirements for:
    • agreed hours of work
    • availability provisions
    • reasonable notice periods to be given before cancellation of a shift
    • reasonable compensation to be paid if a shift is cancelled
    • secondary employment provisions.
  • Unfair treatment of an employee who has lawfully refused work
  • Where an employer forces or persuades an employee not to perform a function, exercise a power or undertake a role under the Health and Safety at Work Act 2015
  • Where an employer compels a shop employee to work on Easter Sunday or treats a shop employee adversely because they refuse to work on Easter Sunday.
How do I raise a personal grievance?

If possible you should first discuss the problem with your employer.  Your employer should be aware there is an issue and be given an opportunity to fix it.  You should communicate the issue in writing and ask for a response within a set time frame, eg 3 days.

You should clearly describe the issues and the events that have led to the problem.  You should provide details and names and dates of who was present when there was a problem.  Email the letter to your employer and keep a copy.

If the employer is unwilling or unable to resolve the issue you can request a mediation. It’s helpful to seek legal advice from an employment lawyer or employment advocate at this stage.

90 day trial period

What is a 90 day trial period?

A 90 day trial period is a clause an employer may put in your employment contract which, when used correctly, enables the employer to take on a new employee on a trial basis for a period of 90 days.  If, for any reason, the employment relationship does not work out within the first 90 days the employer may end the employment relationship without the risk of the employee raising a personal grievance.

I have been dismissed with no notice on my trial period, is that fair?

There should be a clause in your employment agreement which states how much notice you will be given if you are dismissed during your trial. In general this means that if the employer wants you to leave straight away (rather than working through your notice period), then they must pay you for the notice period.

The notice period for your trial period can be different from the notice period once you are finished the trial period, as long as the notice period for the trial is specified in the employment agreement. If the notice is not specified for the trial then your employer should adhere to the notice period in the employment contract.

If you are confused about your notice period, or have been dismissed on the spot without any notice you can call us free to find out if there is a case for unfair dismissal.

What are the employment law rules for a 90 day trial period?

If the 90 day trial clause is uses incorrectly an employer may be shocked to find out that the employee can still raise a personal grievance or claim unfair dismissal despite the 90 day trial clause being present in the employment contract.

A trial period can be less than 90 days
We refer to the 90 day trial clause but the number of days can be less than 90 days, and the exact number of days needs to be specified on the employment agreement.

The 90 day trial clause may be invalid if:

  • You were not informed in writing that your employment contract contained a 90 day trial period before you started work. Or if you signed the employment agreement after you had already started work (even by a few hours)
  • You have previously worked for the employer
  • Your employer has more than 20 employees
  • You were not advised that you had the right to seek independent legal advice or given time to seek advice before signing the contract

The clause didn’t include the correct wording of the Employment Relations Act 2000 Section 67A :

67A When employment agreement may contain provision for trial period for 90 days or less

(1) An employment agreement containing a trial provision may be entered into by a small-to-medium-sized employer and an employee who has not previously been employed by the small-to-medium-sized employer.

(2) For the purposes of this section and section 67B,—

small-to-medium-sized employer means an employer who employs fewer than 20 employees at the beginning of the day on which the employment agreement is entered into trial provision means a written provision in an employment agreement that states, or is to the effect, that—

(a) for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period; and
(b) during that period, the small-to-medium-sized employer may dismiss the employee; and
(c) if the small-to-medium-sized employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.
Section 67A: replaced, on 6 May 2019, by section 36 of the Employment Relations Amendment Act 2018 (2018 No 53).

How much notice do I have to give if I leave my job during my 90 day trial?

Every employment agreement requires that the parties give each other notice to end the relationship.

The notice you give should be the same as the notice that your employer would have to give you according to the trial period clause in your agreement. As the employee you also should act in good faith.  If you are unhappy in your new job we would encourage you to have a conversation with your employer.  If you leave without giving the notice period that is set out in your employment agreement the employer may deduct wages in lieu of notice. In the event that the employer suffers a financial loss as a result of you failing to give notice the employer may take action in the Employment Relations Authority to recover those losses and to seek a penalty.    If you find yourself in the position of wanting to leave and are unable or unwilling to give notice you should seek legal advice from an employment lawyer or advocate.   It’s free to call us to discuss your situation with us.

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Don’t Be Pushed Out Of Your Job Due To Your Age

Age Discrimination

You are protected from age discrimination by the law, and it’s important for you to understand it.

 

It is no secret in a society that is obsessed with physical appearance, employees fight a battle to stay relevant as they reach middle age. In the workplace, that can result in being passed over for promotions, marginalised, and pushed out to make room for younger employees. Age related assumptions create the perception that older workers are less relevant, while the opposite is often true.

While age discrimination is illegal, in practice it’s difficult to prove. Your employer cannot force you to stop working because of your age. If they do, you could file a personal grievance against them.

In New Zealand, nearly one in three workers is already over 55.

NZ Super and some other pensions start at age 65 but there is no official retirement age in New Zealand. There are a few jobs with exceptions where you may not be able to keep working after a specific age. They include:

  • jobs where being a particular age or in a particular age group is genuinely needed for you to do the job —
    for example, an actor who needs to be a certain age for a role
  • domestic employment in a private household, such as a cleaner or a gardener
  • occupations where the retirement age is written into law — for example, judges and coroners
  • some crew of ships and aircraft employed by foreign-owned companies that are operating in New Zealand
  • your employment contract was signed before April 1992 and that contract specified your retirement age, and you agreed with your employer in writing to confirm or change your retirement age.

If you are being managed out of your position, made redundant or subjected to talks of restructuring, or feel you are being bullied into resigning the burden of proof would be with you. Knowing your rights helps you to stand in power. If you are let go and you suspect your age is a factor, we can help you negotiate a better settlement.

While it may be perfectly okay for colleagues to ask you if you have retirement plans it could also raise a red flag. If you are on the receiving end of snide remarks or ‘digs’ mentioning your age, or suggestions that you should retire start taking notes, who said what and who was there.

So If you find yourself subject to talks of restructure or suddenly under the microscope and you start to worry that this could be a sign that you manager or employer may be looking for ways to terminate your employment it would be a good idea to contact us for some free advise or assistance.

Call us on 0800 669 466 or complete our webform:

 

We have an Advocate on our team just waiting for your email or your call.  Email us anytime and we'll reply within a couple of hours on weekdays.

  We're on the phone between 9am - 5pm weekdays.

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Sick Leave

Why it’s not such a great idea to pull a sickie

1. Guilt
You’ll spend most of your day worrying if the boss believes you are really sick and thinking of ways to convince everyone at work how sick you were. And, some poor sucker will have to work twice as hard because you’re not there.

2. You’re going to regret that when you spend the rest of the week trying to catch up.

3. Next week you probably are going to genuinely be sick – that’s called karma, and you’re going to have to think twice about having another day off.

Probably not a great idea to pull a sickie when you’re on a 90 day trial either. 

But then..

Sometimes it’s actually quite hard to tell if you are sick or not, so it’s a hard call to make, and then there are those days where you wake up feeling like ####  but as soon as you get up and about you feel great, especially because you’ve scored a day off.  And then there’s mental health days! 

On the other hand don’t be the person who comes to work with a stinking cold and spreads it around to everyone else and acts like they are some kind of saint!

There is no power in the Holidays Act for an Employer to force their Employees to take sick or unpaid leave, however Employers may want to consider alternative options, such as allowing the Employee to work from home or requiring a medical certificate to confirm they are fit to work.

When you’re really sick what do you do?

You need to tell your employer as soon as possible, that you are sick or injured and you want to take sick leave. A phone call is the best way to let your employer know, but your workplace may have its own systems to tell them you are sick.

You might have to prove it

If the employer asks for proof when you are away sick for less than three consecutive days, they should tell you as soon as possible that proof is required and must pay reasonable expenses incurred in getting that proof. They can’t insist that you visit a particular health provider.

If your employer asks for proof of your illness or injury when you are away sick for three or more consecutive days, you’ll have to pay the costs of visiting a doctor to get that proof. For example, if you have been off work for two consecutive days and are still sick on the third day, then your employer can ask you for a medical certificate and you would have pay for the cost of obtaining one.

If you don’t provide proof when it has been requested and don’t have a reasonable excuse, your employer is entitled to not pay you for the leave until you do provide proof.

The Medical Council of New Zealand has given the following guidelines as to what should be contained in the medical certificates:

Date of examination
Time period of treatment
Clinical opinion that outlines activities that are safe for the Employee to undertake and the appropriate restrictions.
Where medical certificates do not contain this information, and Employees consent, the Employer can request for further information to be provided from the medical professional.

What will happen if I get sick and have already used up all of my sick leave entitlement?

If you have to take time off work due to illness but have no sick leave entitlement, talk to your employer about your options. It’s most likely you will have to use some of your annual leave, take unpaid leave, or take sick leave in advance (e.g. if you have not worked there for long enough to have sick leave entitlement).

If you have been on sick leave for a prolonged period of time, or on ACC your employer doesn’t necessarily have to keep your job open for you.  Please get in touch if you are being dismissed due to being unable to work, and we will check your rights.

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Bullying and harassment

If your workplace has become unsafe because of bullying and harassment by your bosses or co-workers you can do something about it.

Please watch the video above where Kate explains exactly what to do if you are being bullied at work. 

Bullying and harassment can take many forms including abuse, overload of work, and unreasonable expectations in performance of duties. You should approach your immediate superior in the first instance to complain and see if the problem can be fixed. If after several such requests the problem is not fixed you can take a grievance.

You may raise a personal grievance under different statutes depending on the nature of the bullying or harassment. We can help you at the outset to try and resolve your problem and we can help you with your grievance and subsequent progress towards a solution.

Bullying is hard to prove. Just because you feel bullied it doesn’t mean you have a case, but just because it is hard to prove it doesn’t mean you don’t.

What Workplace Bullying IS:

  • Repeated and unreasonable behaviour directed towards a worker that can lead to physical or psychological harm.
  • Repeated behaviour occurs more than once and can involve a range of actions over time.
  • Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.
  • Bullying may also include harassment, discrimination or violence.

What is NOT Workplace Bullying:

  • One-off or occasional instances of forgetfulness, rudeness or tactlessness.
  • Setting high performance standards.
  • Constructive feedback and legitimate advice or peer review.
  • A manager requiring reasonable verbal or written work instructions to be carried out.
  • Warning or disciplining workers in line with the business’ or undertaking’s code of conduct.
  • A single incident of unreasonable behaviour.
  • Reasonable management actions delivered in a reasonable way.
  • Differences in opinion or personality clashes that do not escalate into bullying, harassment or violence.

We must be able to prove that the bully caused harm and also intended to cause harm on more than one occasion.

You will be expected to have kept records of the incidents and to have told someone else, preferably management.

 

Bullying FAQ

Am I being bullied?

A lot of behaviour by our boss or colleagues may feel like bullying.  A lot of this “bullying” could also be described as unpleasant behaviour, this can cause a lot of stress and even anxiety but it might not be bullying.

Bullying is:

  • Repeated
  • Unreasonable, including: humiliating, intimidating or threatening a person
  • Harassment, discrimination or violence

Bullying is not:

  • Occasional rudeness or one off incidents of unreasonable behaviour
  • High performance standards
  • Constructive feedback or advice
  • Requests for extra work to be done\Warning or disciplining workers according to the code of conduct
  • An argument or difference of opinion (as long as it doesn’t become aggressive)

 

What do i do if i am being bullied at work?

You should find out if there are any workplace policies or processes for reporting bullying and follow these. There may be specific and trained people in your workplace who know how to deal with these issues in a sensitive way.

If there is no set process or procedure you should do the following:

Make a note every time something happens. Notes should record dates and times, and what was said or done, who was there, and how it made you feel.

You will then need to make your employer aware of the situation
Ideally you would raise the issue in writing.

Who do I raise it with?
It depends on who is bullying you. If it is another employee, you should first raise the matter with your manager or supervisor, or the next level of management if the offender is your manager.

If the person who is bullying you is the Owner of the company, or the manager and there is nobody else to tell you can call us on 0800NOWINNOFEE and we will advise you or assist you.

What should happen after I report that I am being bullied?

After receiving your complaint the business should:

  • Support you and the person you have complained about
  • Decide on a plan for investigation, including possibly suspending the person who is being investigated
  • Give guidance on how to continue to work with the person
  • Report back to you about the steps that have been taken
I reported the bullying and now things are much worse! What do I do now?

Sadly this is what sometimes happens.  You have done the right thing by reporting the issues because that makes it easier for us to help you.  Give us a call as soon as possible and tell us what’s happening and we will try to help.

If you want to know what the risks of not dealing with bullying in the workplace quickly are you should listen to this podcast: 

Bullying Formal Complaint Form

If the bullying is not an immediate threat to your health and you know your employer is not yet aware of the situation you can use this form to raise a formal complaint:

Print this form and complete it.  Give it to your manager, or to your HR department.  This is to make sure your employer is aware of the bullying situation, and gives them the opportunity to respond.

If you would like to talk to us about the situation, even if you haven’t yet raised the issue with your employer, please contact us. We can help you decide what to do next, or if we can already step in on your behalf.

 

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Reviews and Testimonials

Need help?

If things are out of hand at work and you don’t know where to turn just read through some of our reviews below from clients who we have helped. Then contact us on the form below or call us and we will help you too!

What our clients are saying

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Statistics prove that legal representation for employees  by an employment lawyer or advocate improves your chance of a successful outcome. Don't hesitate, you have nothing to lose by having a free chat with an Employment Law Advocate.

You can email us using the form below. 

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What our clients are saying

 

Kam did a fantastic job

5.0 rating

March 17, 2020
Review of Kam Bailey

Did a fantastic with a company that’s hard to deal with because of size. Answered all my questions, were awesome to deal with, kept me informed all the way through this process, I just cannot thank her enough, without her help I wouldn’t have gotten anything, thank you again for all your help. I just cannot recommend you highly enough,

Ian H

Sandy was excellent

5.0 rating

March 17, 2020
Review of Sandy Ward

I would not hesitate in recommending workplace to anybody in need of work related help
Thank you for your help

Chris Cook

helpful, friendly and professional

5.0 rating

March 10, 2020
Review of Andrea Kelleher

Kate and Andrea are extremely helpful, friendly and professional. I highly recommend their advice…

Lily Tiy

 

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