Introduction

The following guidelines have been originated to assist employer’s to avoid employee’s bringing successful grievances against them for unjustified dismissal.

Employer’s should note that although they may have a good reason to dismiss an employee and even though they also follow correct procedures required by law, this does not take away an employee's right to bring a grievance against the employer.

By following the steps set-up in this guide, employer’s will greatly reduce the risk of a successful grievance being brought against them.

It's important to note that what is required by the Court today may well change tomorrow. Every case is different. The Employment Relations Act (2000) is not very old and it is the decision of the Court that provides us all with the guidelines to follow.

There is the Act, which employer’s and employee’s have to obey, and there are the court's decisions that tell us what they consider to be fair and reasonable when interpreting how an employer acted. The Court's decisions have weighed heavily in favor of employee’s of late. It is well worthwhile going to some lengths to avoid a grievance being brought by an employee.

The exposure today's employer’s are facing in regard to unjustified dismissals and other grievances brought by employee’s is proving to be expensive. If the real costs are taken into account i.e.

  1. The time spent on defence preparation.
  2. Seeking professional advice.
  3. Dealing with the complaint.
  4. The damages awarded by Courts.

The figure is surprisingly high. This doesn't take into account the great emotional stress these complaints cause employer’s to endure.

We often read about the alarming number of 'Unjustified Dismissal' complaints, and other 'Personal Grievance' cases employer’s are facing today. The reality is much worse. Our inquiries revealed some 95% of the cases are settled out of court and because confidentiality is part of the settlement, we never know the results of these cases.

Our research also shows the money being awarded by courts is in excess of $10,000 per claim. Inquiries through Employment Lawyers acting for employer’s show there are very few cases where the employee is asking for less than $15,000.

On the other hand the problem employer’s face is that some lawyers are happy to act for employee’s on a 'no-win-no-fee' basis (i.e. 0800 SACKED). Lawyers negotiate a percentage of awards or a fee, which is paid only if they are successful. Therefore they are only going to issue proceedings against employer’s they have a better than average chance of success with.

An aggrieved employee is quite likely to instruct someone to issue proceedings then, as they have nothing to lose. So the message is clear. When an employer terminates the employment of an employee, they should assume that the employee will bring a personal grievance claim.

Our research has uncovered two fundamental errors in regard to employees.

  1. Hiring or the recruitment stage.
  2. The termination of employment.

When an organisation needs to employ someone, it is usually to replace a staff member who has left, is leaving, or because of expansion. The situation is nearly always urgent. Because of this, being prepared makes the process so much quicker and far more effective.

If a business isn't prepared, the task of employing someone is tiresome, slower then it should be, much more expensive and of course fraught with danger. Unfortunately most Small and Medium Business (SMB) owners have no employment system or dismissal procedures in place to refer to.

We have found that there are four critical factors involved in avoiding disputes, grievances, complaints and employment difficulties:

  1. Selecting the right employee in the first place.
  2. Excellent, open, honest, regular and frequent two way communication.
  3. The correct Employment Contract.
  4. Accurate and comprehensive Job Descriptions.

Prior to employment, the tasks involved, job descriptions, the skills and standards required should all be specific in that they should describe what is expected of the employee. It is very difficult to resolve disagreements after someone is employed and they have been working in an organisation for some time.

In the event of a dispute, the only written notes that can be referred to are the Employment Contract and Attached Schedules, Job Descriptions and Letters of Appointment. So it's well worth while originating comprehensive documented polices and terms to refer to. Get your employees to sign these.

The following dismissal procedures are definitely a guideline only, because the rules and procedures change as courts rule on new cases coming before them. Moreover, each case differs. If employer’s do not follow correct procedures in regard to dismissals, they are going to be guilty of 'unjustified dismissal'.

It is also our recommendation that employer’s deal with the issues rather then allowing emotions to dictate their actions.

Seek professional advice before dismissing anyone. Do nothing without advice.

And remember, management does not always have the authority to dismiss staff. It usually has the authority to suspend employee’s in an emergency, but dismissal will often need to be referred to, and decided by, the owner or board. Clear policy on this is essential, so decide who it is that has the authority to discipline and to dismiss. Then train the person who has the authority in the correct procedures of discipline and dismissal to ensure he/she will act correctly.

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