Employment – Employer
2010 October 1 by Simon
Employer
Whilst most employees and employers are really keen to maintain a good relationship, there can be issues with bad employees. Perhaps someone is turning up late, or is not doing the job. The question is what can you do about it? The Employment Relations Act 2000 seems to side with the employees more than the employers, and so it can be very tough.
The first thing to remember is before taking any formal action (or even informal action), seek legal advice. If you tell an employee that they are lazy and need to pull their head in, they can possibly complain that you have not followed due process and that this is workplace bullying or discrimination. Not a good position to be in.
If you do have a genuine issue with an employee, you have to follow a process. You cannot just drag them on the mat and tear strips off them. That could be workplace bullying and may be grounds for a personal grievance. You inform them (ideally in writing) that you wish to discuss their performance with the specific issue in mind, and that they can bring a representative or support person with them. You also should have someone in the room who can confirm you are following the correct process. You then list the concerns, and have to listen to their reasons. Once done, you then should look at training or a plan to improve this behaviour over a specified reasonable period.
If the problem continues, you need to then start with the warning processes. You always put in writing to them what has been discussed and what has then been agreed. Ideally, ask them to confirm that this is an accurate record of what happened by asking them to sign off on it being a true reflection of the meeting. You need to state that this is a verbal warning, written warning or final written warning, and how long the warning will stand for. This is usually for about 6 months.
If after the final written warning the issues persist, you then may be able to terminate the employment if there is no good reason for the continuation of behaviour. However, you have to be careful that they are treated with respect and given all opportunity and support to improve. Also, ensure that you have run the steps you are taking through with a qualified employment lawyer.
If you do terminate the employment contract, you need to pay outstanding holiday pay immediately. It is also good practice to pay any outstanding wages or other money as quickly as possible. This saves continued contact, and reduces the bad feeling, and the chance of a personal grievance being raised.
Remember the golden rules…
Always be fair and courteous
Allow an opportunity for them to speak and be listened to
Allow them an opportunity to improve (with training where appropriate)
Allow them to attend meetings with representatives
Keep it cordial and polite, whatever the provocation.
If terminating, pay what is owed quickly and fairly.
IF IN DOUBT SEEK LEGAL ADVICE.
Employment – Employee
2010 September 29 by Simon
Employee
URGENT – IF IN DISPUTE WITH AN EMPLOYER, SEEK LEGAL ADVICE QUICKLY. YOU HAVE 90 DAYS TO NOTIFY THE EMPLOYER OF YOUR INTENTION TO RAISE A PERSONAL GRIEVANCE.
The point above has to be kept in mind. This is so urgent, and many personal grievances fail as they are out of time. However, in certain circumstances, the Employment Relations Authority will allow a personal grievance out of time.
There are many possible reasons for having an issue with your employer, and whilst the vast majority of employers play fair, you get a few who think that it is their right to hire and fire as they will, and that they are masters over the employees. This is not correct, and it is important that the relationship between employer and employee is a good one based upon trust and respect.
If your employer has acted unfairly, the first thing to do is to ask for a meeting to discuss the issues. Ideally, take a support person with you, and put down in writing the issues you have in a polite way, possibly as bullet points. Most employers will listen to your concerns and be keen to rectify them. They may also have concerns with you that link up to your concerns, and by discussing these issues informally, you can usually fix them early on.
If things do not improve, or get worse, you need to consider whether you have grounds to raise a personal grievance. The best way to do this is to call the Department of Labour, or speak with a qualified employment lawyer. If you do have grounds, then you will need to write to your employer (or get your lawyer to do so) stating your concerns and that you intend to raise a personal grievance. Also state (if it is true) that you are keen to sit down and still try to resolve the issues informally, and if agreed by your employer, do so with a support person.
If you still do not resolve the issue, and the dispute is linked to an issue such as discrimination, it may be that you are in a position where you need to choose which way you want to take your problem. In such a situation, if the problem is a discriminatory issue as defined in the Human Rights Act, and this is easily proved, then you may well be better off taking the matter to the Human Rights Review Tribunal rather than the Employment Relations Authority. To decide, you really do need to see a qualified lawyer, as once you have started in one forum, you cannot take the same case to the other.
If matters have not resolved, you can request informal mediation from the Department of Labour. For such mediations, it is recommended to take a qualified employment lawyer with you, but at the very least, take a support person with you. The issues will be discussed, and a resolution sought. However, both sides need to agree to go for mediation, and if your employer refuses, you have to go to the next step.
If the mediation does not work, you will need to file with the Employment Relations Authority. They will then arrange mediation with you and your employer, but this is formally arranged as part of the dispute process. If this does not succeed, you will then go for a legal hearing.
Remember the golden rules in regards to any grievance you may have…
Always be courteous and polite.
Do not show aggression.
Always take a support person, ideally a qualified employment lawyer.
Be open minded as to any possible resolution.
Do not just give in, but be firm in a polite way. (Assertive).
If in doubt, seek legal advice.
Your boss probably does not want to go down this track either, so if you can come to an agreement that is fair to both sides, that is the best way forward.
BUCKINGHAM LAW – What we do…
2010 August 4 by Simon
BUCKINGHAM LAW
What we do
Buckingham law is offering the following services…
ACC – Help with lodging a claim. Handling reviews and further legal action. Assistance with medical error cases. Support and advice as to your rights, responsibilities and needs.
***In ACC cases it is ESSENTIAL that you seek legal advice IMMEDIATELY. There are some strict deadlines that have to be met, and if you do not act immediately, you can lose your right to follow up on a case.***
Family – Advice as to your options. Paternity tests. Access, custody and day to day care applications. Protection Orders and domestic violence issues. Divorces. Hague Convention international cases. Negotiation for workable and mutually beneficial agreements.
Employment – Wrongful dismissal. Redundancies. Exit packages, Personal grievances. Contract negotiation and proof reading. Employment Relations Authority representation and negotiation.
***In employment cases it is ESSENTIAL that you seek legal advice IMMEDIATELY. There are some strict deadlines that have to be met, and if you do not act immediately, you can lose your right to follow up on a case.***
Alternative Dispute Resolution – Mediations. Arbitrations. Negotiations. (Simon is an Associate member of the Arbitrators and Mediators Institute of New Zealand)
Other issues – Call to discuss initially.
Fees. The initial consultation is a flat fee of $50 for the first 30 minutes. After that, if we can help, fees can then be discussed and agreed upon. However, we believe in access to justice for all, and so terms can often be arranged on a case by case basis.
Legal Aid – At present we are not registered to take legal aid, though we are looking at registering in the future.