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.
If you have raised a Personal Grievance with your Employer or previous employer (within the 90 day deadline), and you have not received a satisfactory response you can take the grievance to mediation.
What is mediation?
Mediation services are available to Employees as a method of solving employment problems before they go to the Employment Court (the ERA). When needing to identify the issues, resolve disputes and reach an overall outcome a third party called a ‘Mediator’ is available to help.
A successful mediation aims to save time, energy and potential costs & losses. This is a semi-formal, confidential option which allows parties to negotiate and focus on interests, agendas and opportunities to move beyond the issue at hand. We wouldn’t take you to mediation without first assessing you have a good case and being confident that we can get you your desired outcome.
Why should you take an Employment Law Advocate to mediation?
We are experts in New Zealand Employment Law. We know your rights, we have a lot of experience with these matters, and we know what financial (and other) compensations are appropriate.
Most often the employer will bring an Employment Lawyer or Employment Advocate themselves and this can put you at a disadvantage both emotionally and intellectually. You can represent yourself, but knowing your rights and being able to stay calm and open minded during the process is important.
To ensure the best outcome we recommend you seek representation by someone who has legal experience such as an advocate, lawyer or even a community leader. Lawyers usually charge by the hour. Because the mediation process can be quite time consuming it can be very expensive to hire a Lawyer. Our Advocates are legal experts, with specialised knowledge of employment law. We can represent you all the way to the Employment Court if necessary. Our fees are much less than it would cost to use a lawyer. We will take your case to mediation if we think we can get you a financial outcome. You don’t pay us unless we do.
Our Employment Advocates will:
- help you prepare for mediation,
- gather facts,
- set out the law
- identify the most appropriate solution for the issue,
We attempt to obtain a fair compensation based on the facts presented and the ways in which your employer may have breeched your rights under NZ Employment Law.
Having an Advocate represent you does not mean that you will not be involved. Keeping involved in the process will be beneficial to voice any concerns you may have, and give the other party a chance to consider what you are saying. This can be one of the most important parts of your mediation.
You are also able to bring along a support person to your mediation should you wish. The role of a support person is to provide you with emotional support throughout the process.
Both sides get to agree on the outcome.
Most of the time mediation is successful. But occasionally things take a little longer.
If no agreement is reached the case may be escalated to the Employment Relations Authority (ERA).
Sometimes the ERA Member will direct you back to mediation.
At the ERA the final outcome is decided by the authority member (Judge) and neither party will have a say in the settlement. The danger in taking disputes to the ERA is the chance of loss and that you may be ruled against. In some cases costs may be awarded against you, if you are seen to be the person that is in the wrong.
See our page on ERA to get further information on this option.
If an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work intolerable for the employee, it may be a forced resignation or “constructive dismissal”.
A constructive dismissal – forced resignation is where:
- the employer has behaved in a way deliberately aimed at causing the employee to resign
- the employee is told to choose between resigning or being dismissed
- there has been a breach of duty by the employer (i.e. a breach of the employment agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.
However, not all conduct that upsets an employee will be enough to lead to a constructive dismissal. The conduct must be sufficiently serious to justify the employee leaving his or her job. Also, there must be a substantial risk that the employee would leave his or her job as a result of the employer’s conduct, and this risk must have been reasonably foreseeable to the employer.
If an employee feels that they are being pressured to resign then best practice is to raise this with their employer so that there is an opportunity to discuss the issue and try to resolve it. If the matter cannot be resolved and the employee feels that they had no choice but to resign, then the employee can challenge the forced resignation by raising a personal grievance.
Always call us first, once you resign it is harder for us to get you a settlement.
If your boss asks you to resign, ask him/her to put it in writing eg a text or email.
Have you already resigned?
If you can answer yes to the questions below, then you may have good grounds to to claim you have been constructively dismissed.
- Did you really have no choice?
- Did you try everything you could to resolve the situation before resigning?
- Do you have good evidence of what you claim as the cause of your resignation?
Some other examples
- If you are given the option to resign or be demoted
- If you feel you are working in an Unsafe Workplace
- Assault on an employee
- Abuse of an employee
We are a No Win No Fee organisation. This means that we will only charge a fee if we are successful in obtaining a financial settlement for you in addition to other terms of settlement, e.g. written apology and reference, changed from being fired to having resigned. Contact us through our contact form. or call our helpline : 0800 NO WIN NO FEE