Challenging an Unjustified Dismissal at the Employment Relations Authority
Employees in New Zealand have the right to challenge a dismissal they believe was unjustified. This process typically involves raising a personal grievance with the employer, followed by mediation, and potentially an application to the Employment Relations Authority (ERA) if the matter remains unresolved.
What is an Unjustified Dismissal?
An unjustified dismissal is a specific type of personal grievance. A personal grievance is a complaint an employee has against their employer due to certain actions by the employer, such as unjustified dismissal, disadvantage, or discrimination [Source: Employment Relations Act 2000, s 103(1)].
For a dismissal to be considered justified, the employer must show that their actions, and how they acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred [Source: Employment Relations Act 2000, s 103A(2)]. This means the ERA will consider:
- Substantive justification: Whether the employer had a good reason for the dismissal (e.g., serious misconduct, genuine redundancy, poor performance).
- Procedural fairness: Whether the employer followed a fair process, including investigating the matter thoroughly, giving the employee a chance to respond, and genuinely considering their explanation.
Raising a Personal Grievance
To challenge a dismissal, an employee must first raise a personal grievance with their employer. This must generally be done within 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later [Source: Employment Relations Act 2000, s 114(1)].
The personal grievance must be raised with the employer or a representative of the employer [Source: Employment Relations Act 2000, s 115(1)(a)]. While there is no specific format required, it is advisable to raise it in writing, clearly stating the nature of the grievance and the remedy sought.
Mediation
If the personal grievance cannot be resolved directly with the employer, either party can refer the matter to mediation services provided by the Ministry of Business, Innovation and Employment (MBIE) [Source: Employment Relations Act 2000, s 144]. Mediation is a confidential and voluntary process where an independent third party (mediator) helps the employer and employee communicate and try to reach a mutually acceptable resolution [Source: Employment Relations Act 2000, s 145].
If a settlement is reached during mediation, it can be recorded in writing and is generally binding on both parties [Source: Employment Relations Act 2000, s 148].
Applying to the Employment Relations Authority (ERA)
If mediation is unsuccessful, or if one party refuses to engage in mediation, either party may apply to the Employment Relations Authority (ERA) to resolve the personal grievance. The ERA is an independent body that investigates and determines employment relationship problems [Source: Employment Relations Act 2000, s 158(1)].
To apply, an employee typically files an application with the ERA, outlining the details of their personal grievance and the remedies they are seeking. The ERA then investigates the matter by:
- Directly communicating with the parties involved.
- Holding an investigation meeting where parties present evidence and arguments.
- Considering all relevant information [Source: Employment Relations Act 2000, s 159].
After its investigation, the ERA issues a determination, which is a legally binding decision [Source: Employment Relations Act 2000, s 174].
Remedies for Unjustified Dismissal
If the ERA determines that a dismissal was unjustified, it may grant one or more of the following remedies [Source: Employment Relations Act 2000, s 123]:
- Reinstatement: The employee is returned to their former position or a position no less advantageous [Source: Employment Relations Act 2000, s 123(1)(a)].
- Reimbursement: The employee may be reimbursed for wages lost as a result of the dismissal. This can be up to three months' remuneration, or the full amount if it is just and equitable to do so [Source: Employment Relations Act 2000, s 123(2)].
- Compensation: The employee may receive compensation for humiliation, loss of dignity, and injury to feelings caused by the unjustified dismissal [Source: Employment Relations Act 2000, s 123(1)(c)(i)].
The ERA considers all the circumstances of the case when deciding on appropriate remedies.
Appeals
If a party is dissatisfied with an ERA determination, they generally have the right to appeal to the Employment Court [Source: Employment Relations Act 2000, s 180]. The Employment Court re-hears the case and makes its own decision based on the evidence presented.
When to Seek Independent Legal Advice
Navigating employment law can be complex, and employees are encouraged to seek independent legal advice if they believe they have been unfairly dismissed. Organisations like Community Law Centres, citizens advice bureaus, or private lawyers specialising in employment law can provide guidance on specific situations and help understand rights and obligations. Free legal assistance may be available through Community Law Centres.