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employment

What to do if you are fired after making a complaint

Key Takeaway

If an employee in New Zealand is dismissed after making a complaint, they may be able to raise a personal grievance for unjustified dismissal. This involves challenging whether the employer's actions and process were fair and reasonable. The Employment Relations Act 2000 outlines the rights and resolution pathways, including mediation and the Employment Relations Authority.

Dismissal After Making a Complaint in New Zealand Employment Law

In New Zealand, an employee who believes they have been dismissed after making a complaint may have grounds to challenge that dismissal. The relevant law, primarily the Employment Relations Act 2000, establishes pathways for employees to address what they perceive as unfair or unjustified actions by their employer.

Unjustified Dismissal and Personal Grievance

Being dismissed after making a complaint often falls under the concept of unjustified dismissal. An unjustified dismissal occurs when an employer’s actions, and how they acted, were not what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred [Source: Employment Relations Act 2000, s 103A].

If an employee believes their dismissal was unjustified, they may raise a personal grievance. A personal grievance is a claim by an employee against their employer for an alleged breach of their employment rights. The grounds for a personal grievance include, but are not limited to, unjustified dismissal [Source: Employment Relations Act 2000, s 103(1)(a)]. Another ground is unjustified disadvantage, which applies if the employee’s employment or conditions of employment are affected to their disadvantage by an unjustifiable action by the employer [Source: Employment Relations Act 2000, s 103(1)(b)]. This could include situations where an employee faced negative treatment prior to dismissal because of a complaint.

Exercising Employment Rights

Employees have various employment rights, and the act of making a complaint (e.g., about bullying, discrimination, health and safety concerns, or alleged breaches of their employment agreement) can be seen as exercising these rights. The law generally protects employees from being disadvantaged for legitimately exercising their rights. If a dismissal is found to be a consequence of the employee having made a complaint, and the employer's actions were not fair and reasonable, it is likely to be considered an unjustified dismissal [Source: Employment Relations Act 2000, s 103A].

Raising a Personal Grievance

An employee wishing to challenge their dismissal must raise a personal grievance with their employer within 90 days, beginning on 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 employer must then be given a reasonable opportunity to respond to the grievance [Source: Employment Relations Act 2000, s 115(1)(a)].

Resolution Process

If an employee raises a personal grievance, and it cannot be resolved directly with the employer, there are formal pathways for resolution:

  • Mediation: Parties can use mediation services provided by the Ministry of Business, Innovation and Employment (MBIE). Mediation involves an independent, neutral mediator helping the parties communicate and reach a mutually acceptable resolution [Source: Employment Relations Act 2000, Part 9, Subpart 1]. This service is confidential and often the first step if direct discussions fail.
  • Employment Relations Authority (ERA): If mediation is unsuccessful, either party may apply to the Employment Relations Authority. The ERA is an independent body that investigates employment relationship problems and makes determinations based on the facts and the law [Source: Employment Relations Act 2000, Part 9, Subpart 2]. The ERA's determinations are legally binding.
  • Employment Court: Decisions of the Employment Relations Authority can be appealed to the Employment Court [Source: Employment Relations Act 2000, Part 9, Subpart 3]. The Employment Court is a specialist court that deals with employment law matters.

Potential Remedies

If a personal grievance for unjustified dismissal is upheld, the Employment Relations Authority or Employment Court may order various remedies, which can include:

  • Reinstatement: Returning the employee to their former position or a position no less advantageous [Source: Employment Relations Act 2000, s 123(1)(a)].
  • Reimbursement: Payment of lost wages or other benefits to the employee, up to three months' remuneration, or a greater amount if the ERA or Court considers it just and equitable [Source: Employment Relations Act 2000, s 123(2)].
  • Compensation: Payment to the employee for humiliation, loss of dignity, and injury to feelings caused by the unjustified action [Source: Employment Relations Act 2000, s 123(1)(c)(i)].

When to Seek Independent Legal Advice

Navigating employment law can be complex. An employee who believes they have been unjustifiably dismissed or disadvantaged should consider seeking independent legal advice. Information and assistance can be obtained from official government bodies such as Employment New Zealand, or from community legal services such as Community Law Centres for free advice.

Key Resources