DISMISSED IN YOUR TRIAL PERIOD?
Both employers and employees have rights under the trial period law
Can you still have a case for unjustified dismissal if you are terminated under the 90-day trial period?
Changes to trial periods
After 6 May 2019, only businesses with less than 20 employees will be able to use the 90-day trial period.
If your employer gave you an agreement but didn’t tell you there was a 90-day trial provision, (depending on the circumstances) – you may be able to raise a claim for unjustified dismissal.
If you started work before you signed an agreement (which contained a 90-day trial provision) – you may be able to raise a claim for unjustified dismissal.
If your employment agreement fails to appropriately specify when your 90-day trial period started – you may be able to raise a claim for unjustified dismissal.
There are also some general good faith obligations:
Your employer still has an obligation to ensure that you have the tools and equipment to do your job, that they provide any training or coaching that is appropriate to ensure you’re successful in your role, that if there are issues or concerns with any element of your employment, that they’ve raised them with you and given you the opportunity to rectify any concerns.
* There is a catch though – if you believe you have a claim – you need to ensure you raise it no later than 90 days after the termination of your employment.
So if you’ve been terminated under the 90-day trial provision in your agreement and your employer hasn’t followed the correct process, give one of the team at WorkLaw a call on 0800 669 466 , or email us via our contact form and we’ll see what we can do to help.
As awful as it sounds, the closer we get to Christmas the more and more we hear about organisations needing to make the tough calls about the structures and resourcing that they require to see them be successful in the coming year.
There’s never a good time to have to make people redundant, but when it’s done right (sensitively, for genuine reasons, fairly and transparently), it does make a difference on how exiting employees view (and talks about) their organisation in the future.
In New Zealand over recent years, there have been ebbs and flows in terms of the level of interference the government has had in decisions made by organisations when it comes to redundancy processes and the results of those processes.
However, recent decisions in both the Court of Appeal and the Employment Court suggest that there is much closer scrutiny of organisational restructures with the following key elements being identified as critical to an organisation’s success in running a good process and staying on the right side of the law:
1. Substantive justification.
This means that the employer must be able to establish that a position is genuinely surplus to its requirements (based on clear evidence and ideally presented to the employee at the time of the proposal), and that it is not a change being implemented for any other reason (i.e. to exit a problem employee).
2. Procedural fairness.
This means that the employer must follow a fair process in implementing the redundancy (and this is covered in s 4 of the Employment Relations Act and implied obligations of good faith) which includes:
- Consultation the employer must consult with all employees impacted by a proposed change. This consultation needs to be genuine and all feedback received as a result of the consultation needs to be given real consideration prior to the organisation making a decision on how to proceed;
- Consideration of alternatives – these include redeployment and transfer, and should be genuinely considered prior to making an employee redundant.
- Fair selection processes – where an organisation is proposing to have more employees than roles available, it must undertake a fair selection process. This includes the use of objective selection criteria (based on the requirements of the remaining roles) and should (ideally) be given to the candidates of the roles prior to being finalised to ensure they understand which criteria they are being assessed against.
- Informing the employee of the outcome – ideally this occurs in a face to face meeting, and should occur ahead of anyone else in the organisation becoming aware of your employee’s situation.
- Notice and redundancy compensation – making sure that any payments made to your employee are in line with the requirements as outlined in their employment agreement.
I’ve detailed above what an organisation needs to do in order to run a great restructure process – but my post wasn’t called “how to run a great restructure”!
I asked the question “when is a redundancy not a redundancy?”
I suspect for many organisations, it’s where they have a challenge with an employee and they think that perhaps a restructure might be easier than managing performance.
Or the organisation thinks it might be easier to do a restructure, especially where there are no substantive disciplinary issues that would form the basis for a termination.
For small organisations without an HR function, a restructure might seem like something to cure all ills.
Let me stop you there!
Organisations will get into just as much trouble from a poorly conceived restructure as a badly run / unsubstantiated disciplinary process.
I understand that getting restructures and redundancies right can seem like a herculean task and the likelihood (and cost) of getting it wrong, is very scary indeed!
Sometimes, the best thing you can do for your organisation, is admit that it’s not your skill set and ask for help!
We can help you design and execute a seamless, end to end restructure process that ticks all the boxes and mitigates the risks for your business.
A good process, executed fairly, can make the difference between losing the trust and confidence of your team or ensuring that your business is set up for future success.
Genuine restructures, while difficult, if communicated appropriately and sensitively, will more often than not trigger understanding from those most impacted.
If you’re looking to kick off a restructure process and need some help, call us on 0800 669 466 and let us connect you with the right people and processes to help or email us using the form below.
I think I speak for most employees when I say that we want things to be simple. We want to find a job we love, with people we like to work with, doing something that adds value or brings us joy.
However, sometimes it’s not that simple. For whatever reason, things can get complicated.
Sometimes this complication can end up with us losing our job or with us making the decision to move on.
Not every ending equals a grievance though.
So how do you know if you have a grievance?
As a starting point, there are some pretty general guidelines that can help you determine if you might have a grievance. Take a look at the questions and answers below. If they sound like your situation it may definitely be worth giving us a call.
1. Termination of your employment – Dismissal:
– Did your employer follow a process (i.e. give you a letter outlining their concerns, allow you to bring a support person to the meeting, outline their concerns and give you an opportunity to present your version of events, take enough time to consider all the information before making a decision) to get to the decision to terminate your employment?
If they didn’t do these things, you might have grounds for a grievance. (There is some flexibility around small employers who may not understand all of their obligations under the law, but we can talk you through this.)
– Did your employer meet all of their obligations in relation to your employment agreement (i.e. did they make you aware of the 90-day trial provision in your agreement, does the clause in your agreement comply with the requirements under the law)?
We find that more often than not employers are breaching their obligations in relation to how they treat their employees when there is a 90-day trial provision in the agreement. There’s a good chance that your termination may be unjustified if the provision in your agreement is found to be invalid. We can have a look at your employment agreement and talk you through a potential course of action.
3. Suffering disadvantage in your employment:
– Are you being treated differently because you’re an immigrant?
– Have you been threatened or forced to work in a way that you don’t think is right or breaches the terms of your visa?
– Are you being paid for all the hours you work?
– Did you get the right training and tools to do the job you’re being asked to do?
– Is your employer communicative with you?
There are a number of ways that you may have suffered disadvantage in the workplace. We can talk through your particular situation and help work out if you have the grounds for a grievance.
– Did your employer provide a clear and supported rationale for the decision to disestablish your role?
While business’ do have the right the restructure they need to ensure that they do it in a way that is fair and reasonable. That means that they need to provide enough information to support their proposal and the restructure needs to be for genuine business reasons (it can’t be to get rid of a problem employee!). If you don’t think the restructure completed by your employer was genuine it would be worth giving us a call.
5. No option but to resign:
– Was there something happening in your workplace that made you uncomfortable, made you not feel safe or for any other reason where you believe that you might not have any other option to resign. This may include being bullied, being asked to perform work that is unsafe or that you’re not trained to do or because you’ve been threatened while at work. (Please note that this does not include your employer requiring you to participate in performance improvement processes – if they’ve identified that there are performance concerns, or your is employer taking you through a disciplinary process because there has been an issue at work.)
– Did your employer tell you that if you didn’t resign that you would be fired?
Constructive dismissal is difficult – but not impossible. If you have a concern at work and you’ve raised your concerns with your employer and they have chosen not to do anything to resolve your concerns, you may have the grounds for a constructive dismissal claim.
6. Just need some advice and support?
We don’t just work with employees who want to raise personal grievance claims with their employers.
We can also advocate for employees in meetings and provide advice in regards to all employment matters.
The best place to start is with a phone call – call us on 0800 669 466 to see if we can help you. Or complete our Contact Form.