Forced Resignation

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

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Unsafe working environment – health and safety

Being in an unsafe working environment can make your job increasingly difficult. Employers must provide a safe workplace, with proper training, supervision and equipment. This duty includes identifying, assessing and managing hazards in the workplace, and investigating health and safety incidents in the workplace.

Employees must take reasonable care to keep themselves safe, and to avoid causing harm to other people by the way they do their work.

Employees may refuse work likely to cause them serious harm and employees have the right to participate in improving health and safety.

If you feel that you are working in an unsafe environment and your employer is unwilling to discuss or resolve the issue – contact us, our company can assist you in dealing with your concerns.

Please provide a timeline of events, and any evidence of you making your employer aware of the situation.  

Bullying and harassment is also a health and safety issue. See our page on bullying here: Bullying In The NZ Workplace

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BACKGROUND OF SITUATION

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Written Warnings

The purpose of a written warning or a verbal warning is to prevent re-occurrence of the inappropriate behaviour/misconduct. The emphasis should be on what you have done wrong and what you should do to resolve it.  Written or verbal warnings are a opportunity to clear up the problem and set the worker on the right track. A verbal warning should be given in private.  

If you are given a Verbal Warning take careful note of what was said, by who, where you were and who else was there. 

What to do if you get a written warning?

If your employer is unhappy with your performance or something you have done at work, they may give you a warning.  The purpose of a warning is to warn you about your actions and allow you to improve your behaviour. A warning can be verbal or in writing.  Your Employer should give you information outlining the issue/incident or problem and give you a chance to respond.  More particular rules about warnings may be in your employment agreement.

A Written Warning Can Escalate Quickly to Disciplinary Meetings or Dismissal

A Written Warning Can Escalate Quickly to Disciplinary Meetings or Dismissal

Did you know you don’t necessarily get 2 warnings?

Often people think the law says that a person must receive two warnings before they can be dismissed. Actually, the law doesn’t have any such requirement. However, on the grounds of fairness, you should expect to receive some warning or warnings (verbal and/or written) before being dismissed (unless the issue is serious misconduct). Your employer will keep a record in your employment file of any warnings you are given .  It is common to have a limit on how long those warnings stay in your file – usually no more than 12 months.  

And Often The Next Step Is A Disciplinary Meeting And Dismissal

We don’t want to scare you but quite often, especially if you are up to the second one, a Written Warning is just the first step in the dismissal process.   Unfortunately at times the writing is on the wall and the employer is actually going through the motions to dismiss you.  You should call us for advice, we can talk about what is going on, and advise you on how to handle the situation.  We can represent you (for an hourly rate) if you want to keep your job, or we can start negotiations for an exit package if you feel things have gone too far.   

Don’t Panic, and Don’t Resign!  Get In Touch, it’s what we’re here for, call 0800 NO WIN NO FEE or complete the form below.

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Wages Protection – Unlawful Deductions

Deductions on wages are governed by the Wages Protection Act 1983.  No payments can be unlawfully deducted from wages.

It is the duty of the employer to make regular returns on PAYE on your behalf, in addition other deductions may apply including KiwiSaver, child support payments and student loan repayments. If you encounter a problem on payments of your tax we can help investigate. We can help ensure you are being paid above minimum wage for hours worked and the pursuant to your employment contract you are being paid at the correct rate.

If you have a problem with your employer making Unlawful Deductions from your wages we can help you get your money back and also help resolve any dispute you have with matter that led to the deduction. We can also help you if your wages are underpaid or late paid outside statutory provisions. We can look at your holiday entitlements that should be reflected in your pay.

Where you have any concerns regarding your pay contact us to discuss. Sometimes a wage problem is the beginning of a bigger problem with your employer. We can act quickly on your behalf to keep things from escalating.

Reinstatement

Did you know that one of the remedies for unfair dismissal is reinstatement?

Reinstatement, in employment law, refers to placing a worker back in a job he or she has lost without loss of job benefits.

Seeking and obtaining reinstatement allows you to continue with a job that has many benefits particularly ongoing employment and income while you plan your next career move. It may also be that you continue in a job that you like and where the previous problems may be solved that in turn enables you to remain permanently in that job. s. 125 of the Employment Relations Act 2000 provides for the remedy of reinstatement to be awarded by the Employment Relations Authority where it is sought by the applicant and where it is reasonable and practicable to do so. We can help get your job back through negotiation or mediation as well as through the Authority.

Often you need breathing space at work to see what opportunities for other employment are around. Getting reinstated give you that vital time to figure things out.

There can be other solutions to your work problems, for example a change of employment conditions such as working from home, transfer to another area or change of duties. 
We can help you consider this range of possibilities and obtain a solution for you.

Remember that it is preferable to change jobs without any down time affecting income and experience. Reinstatement should therefore be considered as a serious solution to your workplace problems.  Contact Us to discuss your particular case.

Parental Leave

Parental leave is governed by the Parental Leave and Employment Protection Act 1987.

Where you are entitled to parental leave your job should be there for you when you return.

It is very rare that a job cannot be kept open.

In most cases you are expected to give three months notice of your intention to take leave. There are often problems for the employer keeping a job open such a lengthy period of time and you need to check on several points both before and during leave. We can help ensure your job is still there when you return. Problems also arise when an employee seeks leave and the employment relationship deteriorates. We can help identify problems and resolve them on your behalf.

It is best to consult us before you tell your employer you are seeking parental leave to avoid potential problems. We can ensure your leave is handled appropriately. We can also help with problems of discrimination against women having children and remaining in the workplace including elements of age and gender discrimination.

If you suspect you are being prejudiced in the workplace in any way give us a call.

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