Employment Law 2017-05-19T12:17:27+00:00

Employment Law

Our experienced employment team is able to advise you in respect of your rights as set out in the Employment Relations Act 2000. This Act has “good faith” as its central principle. This means that employers, employees and unions must deal with each other honestly and openly.

Employment law can result in employers paying significant monies to employees who are unjustifiably dismissed and/or dismissed through an unfair procedure.

Employers are also required to ensure that their work places are safe from sexual harassment or other forms of discrimination.

The areas in which our employment lawyers will give you advice are as follows:

You can learn more about the team members who can assist you by visiting the Planning & Business Solutions Team or by contacting us directly.

Collective Employment Agreements

The Union, for and on behalf of its members negotiates the terms and conditions of its members’ employment with the employer.

These terms and conditions relate to pay issues as well as hours worked, working conditions, breaks and leave.

Employees, who are not members of a Union, normally negotiate directly with their employer about the terms and conditions of their employment.

An employment agreement by law is required to be in writing and the employee should receive it in reasonable time before starting their employment.

The employee is to be given a reasonable opportunity to obtain advice (not necessarily legal advice) prior to signing the employment agreement.

The employment agreement is required, amongst other things, to record the place of employment, hours of work, pay and other terms and conditions of employment.

The law requires employees who take a job with an employer where the staff are affiliated to a union, to have the same terms and conditions as those recorded in the collective agreement. However, after a month the employer can then negotiate with the employee a new individual employment agreement.

A fixed term employment agreement is only legal if there are genuine reasons based on reasonable grounds for ending the employment, they are:

  • the close of a specified date or period
  • on the occurrence of a specified event
  • at the conclusion of a specified project.

The following reasons are not genuine reasons for a fixed term of employment:

  • to exclude or limit the rights of an employee
  • to establish the suitability of the employee for permanent employment.

A probationary period recorded in any employment agreement does not permit an employer to dismiss the employee for poor work performance at the end of that period. They can only do so if the employer has undertaken correct performance reviews throughout the probationary period and the employee has not responded to those performance reviews.

PDF: Employment Agreement

Personal Grievances

Most personal grievances arise when an employer unjustifiably dismisses an employee or, whilst legitimately dismissing an employee, the employer fails to act in a procedurally fair manner.

Another form of personal grievance arises when an employer places an employee at a serious disadvantage within the work place but does not go as far as to dismiss them. The employee can raise their personal grievance with the employer, though it can be difficult while still employed there. As a result, an exit package can sometimes be negotiated between the employer and the employee’s representative.

An employee has up to 90 days to raise a personal grievance with an employer.
In the case of unjustified dismissals, the usual rule of thumb is for an employee to seek from their employer a minimum of three months loss of salary and damages for stress and humiliation. Often such personal grievances are resolved at mediation hearings.

Not all mediations result in employees receiving significant sums of money from the employer. The loss of wages component can range between one month to three months loss of salary and in aggravated cases sometimes more. Damages for stress and humiliation generally range anywhere between $500.00 and $5,000.00.

The employee is taxed on the loss of wages component but damages for stress and humiliation are tax-free.

From 1 April 2011 onwards, all employers can rely on a 90 day ‘grievance free’ trial period for new employees providing that:

  • the employer has not previously employed the employee
  • the 90 day grievance free trial period is recorded in a written employment agreement
  • the employee signs the employment agreement before they commence work.

It is important to note that the grievance free trial period will only apply to potential claims of unjustified dismissal during the initial 90 days of employment. Employers will still be liable for other types of grievance claims during this period, including claims of disadvantage and discrimination against an employee.

Discipinary Hearings

If an employer believes their employee has acted in an inappropriate manner, for example, dishonestly, or drinking/drug taking during the course of employment, an employer cannot dismiss the employee for serious misconduct. In these instances, a disciplinary hearing must be held.

The employer provides notice to the employee of the details surrounding the alleged misconduct and asks for the employee’s response. Without predetermining the position, the employer, having considered the employee’s response, may then choose to dismiss the employee. Again, it is important that the dismissal is done in a procedurally fair manner.

Termination

If an employee wishes to resign from their employment, most collective employment agreements and individual employment agreements record the notice period they are required to give their employer. The notice period can range from one week to one month.

Whilst an employee is free to resign at any time, an employer cannot simply terminate an employee’s employment without having legitimate reasons, namely:

If an employer wishes to dismiss an employee for performance reasons, they must take care to follow an appropriate process. The employer places the employee on notice in writing. This notice must state the areas in which they are deficient. The employer is required to obtain the employees feedback regarding their concerns and to provide an appropriate level of support for a defined period, assisting the employee to improve their performance.

This process should be repeated two or three times over an extended period. If there is insufficient improvement, the employer having followed the appropriate procedures, will have grounds to dismiss the employee.

It is important that an employer follow the correct legal procedures. Should the employer fail to do so, the employer will inevitably face a personal grievance from the employee on two fronts:

  • either, the employer has unjustifiably dismissed the employee and/or
  • in dismissing the employee (either justifiably or unjustifiably), the employer has failed to act in a procedurally correct manner.

PDF: Terminating Employment

Redundancies

Should the possibility arise that any employee is to be made redundant or an employer is considering selling all, or part of their business; the employer is required by law to place the employee on notice.

Most redundancies can be justified on economic grounds but it is still imperative that an employer follow the appropriate procedures when addressing the possibility of redundancies with any employee.

Restructuring

As with redundancies, an employer, when considering restructuring, is required to consult with its employees and obtain their feedback concerning that possible redundancy.

The employer is required to act in good faith in listening to any proposals that an employee may have concerning a possible redundancy.