NZ Herald
  • Home
  • Latest news
  • Video
  • New Zealand
  • Sport
  • World
  • Business
  • Entertainment
  • Podcasts
  • Quizzes
  • Opinion
  • Lifestyle
  • Travel
  • Viva
  • Weather forecasts

Subscriptions

  • Herald Premium
  • Viva Premium
  • The Listener
  • BusinessDesk

Sections

  • Latest news
  • New Zealand
    • All New Zealand
    • Crime
    • Politics
    • Education
    • Open Justice
    • Scam Update
    • The Great NZ Road Trip
  • On The Up
  • World
    • All World
    • Australia
    • Asia
    • UK
    • United States
    • Middle East
    • Europe
    • Pacific
  • Business
    • All Business
    • MarketsSharesCurrencyCommoditiesStock TakesCrypto
    • Markets with Madison
    • Media Insider
    • Business analysis
    • Personal financeKiwiSaverInterest ratesTaxInvestment
    • EconomyInflationGDPOfficial cash rateEmployment
    • Small business
    • Business reportsMood of the BoardroomProject AucklandSustainable business and financeCapital markets reportAgribusiness reportInfrastructure reportDynamic business
    • Deloitte Top 200 Awards
    • CompaniesAged CareAgribusinessAirlinesBanking and financeConstructionEnergyFreight and logisticsHealthcareManufacturingMedia and MarketingRetailTelecommunicationsTourism
  • Opinion
    • All Opinion
    • Analysis
    • Editorials
    • Business analysis
    • Premium opinion
    • Letters to the editor
  • Sport
    • All Sport
    • OlympicsParalympics
    • RugbySuper RugbyNPCAll BlacksBlack FernsRugby sevensSchool rugby
    • CricketBlack CapsWhite Ferns
    • Racing
    • NetballSilver Ferns
    • LeagueWarriorsNRL
    • FootballWellington PhoenixAuckland FCAll WhitesFootball FernsEnglish Premier League
    • GolfNZ Open
    • MotorsportFormula 1
    • Boxing
    • UFC
    • BasketballNBABreakersTall BlacksTall Ferns
    • Tennis
    • Cycling
    • Athletics
    • SailingAmerica's CupSailGP
    • Rowing
  • Lifestyle
    • All Lifestyle
    • Viva - Food, fashion & beauty
    • Society Insider
    • Royals
    • Sex & relationships
    • Food & drinkRecipesRecipe collectionsRestaurant reviewsRestaurant bookings
    • Health & wellbeing
    • Fashion & beauty
    • Pets & animals
    • The Selection - Shop the trendsShop fashionShop beautyShop entertainmentShop giftsShop home & living
    • Milford's Investing Place
  • Entertainment
    • All Entertainment
    • TV
    • MoviesMovie reviews
    • MusicMusic reviews
    • BooksBook reviews
    • Culture
    • ReviewsBook reviewsMovie reviewsMusic reviewsRestaurant reviews
  • Travel
    • All Travel
    • News
    • New ZealandNorthlandAucklandWellingtonCanterburyOtago / QueenstownNelson-TasmanBest NZ beaches
    • International travelAustraliaPacific IslandsEuropeUKUSAAfricaAsia
    • Rail holidays
    • Cruise holidays
    • Ski holidays
    • Luxury travel
    • Adventure travel
  • Kāhu Māori news
  • Environment
    • All Environment
    • Our Green Future
  • Talanoa Pacific news
  • Property
    • All Property
    • Property Insider
    • Interest rates tracker
    • Residential property listings
    • Commercial property listings
  • Health
  • Technology
    • All Technology
    • AI
    • Social media
  • Rural
    • All Rural
    • Dairy farming
    • Sheep & beef farming
    • Horticulture
    • Animal health
    • Rural business
    • Rural life
    • Rural technology
    • Opinion
    • Audio & podcasts
  • Weather forecasts
    • All Weather forecasts
    • Kaitaia
    • Whangārei
    • Dargaville
    • Auckland
    • Thames
    • Tauranga
    • Hamilton
    • Whakatāne
    • Rotorua
    • Tokoroa
    • Te Kuiti
    • Taumaranui
    • Taupō
    • Gisborne
    • New Plymouth
    • Napier
    • Hastings
    • Dannevirke
    • Whanganui
    • Palmerston North
    • Levin
    • Paraparaumu
    • Masterton
    • Wellington
    • Motueka
    • Nelson
    • Blenheim
    • Westport
    • Reefton
    • Kaikōura
    • Greymouth
    • Hokitika
    • Christchurch
    • Ashburton
    • Timaru
    • Wānaka
    • Oamaru
    • Queenstown
    • Dunedin
    • Gore
    • Invercargill
  • Meet the journalists
  • Promotions & competitions
  • OneRoof property listings
  • Driven car news

Puzzles & Quizzes

  • Puzzles
    • All Puzzles
    • Sudoku
    • Code Cracker
    • Crosswords
    • Cryptic crossword
    • Wordsearch
  • Quizzes
    • All Quizzes
    • Morning quiz
    • Afternoon quiz
    • Sports quiz

Regions

  • Northland
    • All Northland
    • Far North
    • Kaitaia
    • Kerikeri
    • Kaikohe
    • Bay of Islands
    • Whangarei
    • Dargaville
    • Kaipara
    • Mangawhai
  • Auckland
  • Waikato
    • All Waikato
    • Hamilton
    • Coromandel & Hauraki
    • Matamata & Piako
    • Cambridge
    • Te Awamutu
    • Tokoroa & South Waikato
    • Taupō & Tūrangi
  • Bay of Plenty
    • All Bay of Plenty
    • Katikati
    • Tauranga
    • Mount Maunganui
    • Pāpāmoa
    • Te Puke
    • Whakatāne
  • Rotorua
  • Hawke's Bay
    • All Hawke's Bay
    • Napier
    • Hastings
    • Havelock North
    • Central Hawke's Bay
    • Wairoa
  • Taranaki
    • All Taranaki
    • Stratford
    • New Plymouth
    • Hāwera
  • Manawatū - Whanganui
    • All Manawatū - Whanganui
    • Whanganui
    • Palmerston North
    • Manawatū
    • Tararua
    • Horowhenua
  • Wellington
    • All Wellington
    • Kapiti
    • Wairarapa
    • Upper Hutt
    • Lower Hutt
  • Nelson & Tasman
    • All Nelson & Tasman
    • Motueka
    • Nelson
    • Tasman
  • Marlborough
  • West Coast
  • Canterbury
    • All Canterbury
    • Kaikōura
    • Christchurch
    • Ashburton
    • Timaru
  • Otago
    • All Otago
    • Oamaru
    • Dunedin
    • Balclutha
    • Alexandra
    • Queenstown
    • Wanaka
  • Southland
    • All Southland
    • Invercargill
    • Gore
    • Stewart Island
  • Gisborne

Media

  • Video
    • All Video
    • NZ news video
    • Business news video
    • Politics news video
    • Sport video
    • World news video
    • Lifestyle video
    • Entertainment video
    • Travel video
    • Markets with Madison
    • Kea Kids news
  • Podcasts
    • All Podcasts
    • The Front Page
    • On the Tiles
    • Ask me Anything
    • The Little Things
    • Cooking the Books
  • Cartoons
  • Photo galleries
  • Today's Paper - E-editions
  • Photo sales
  • Classifieds

NZME Network

  • Advertise with NZME
  • OneRoof
  • Driven Car Guide
  • BusinessDesk
  • Newstalk ZB
  • What the Actual
  • Sunlive
  • ZM
  • The Hits
  • Coast
  • Radio Hauraki
  • The Alternative Commentary Collective
  • Gold
  • Flava
  • iHeart Radio
  • Hokonui
  • Radio Wanaka
  • iHeartCountry New Zealand
  • Restaurant Hub
  • NZME Events

SubscribeSign In
Advertisement
Advertise with NZME.
Home / Business / Economy / Employment

Don't dismiss the need for safeguards

By Val Leveson
NZ Herald·
10 Sep, 2019 12:32 AM5 mins to read

Subscribe to listen

Access to Herald Premium articles require a Premium subscription. Subscribe now to listen.
Already a subscriber?  Sign in here

Listening to articles is free for open-access content—explore other articles or learn more about text-to-speech.
‌
Save

    Share this article

A personal grievance can be raised for an unlawful suspension if a process hasn't been adhered to. Pic Getty.

A personal grievance can be raised for an unlawful suspension if a process hasn't been adhered to. Pic Getty.

Poor performance, misconduct that continues after repeated warnings, gross misconduct (such as theft or violence), breach of company policy or employment agreement are some of the reasons an employer may want to dismiss an employee, but how do they go about it in a legal way?.

Specialist employment lawyer Catherine Stewart says the general procedure for firing someone is quite complex. "There is no blueprint or list of things that make dismissing someone justified. It depends on the circumstances of a particular dismissal. But in general, or as a broad rule, there is a requirement for there to be a fair investigation before dismissal occurs and a discussion with the employee, giving them the right to respond before action is taken."

She says it's important the company genuinely considers the employee's explanation.

"These are the broad steps that need to be taken by the employer, but there are numerous permutations of those principles in regards to each individual case," Stewart says.

"There is a statutory test that is set out in Section 103A of the Employment Relations Act which is called the Test of Justification and that encapsulates the justification principles for dismissal. I do need to emphasise that there is no blueprint for any given situation because it's very dependent on the individual circumstances."

Advertisement
Advertise with NZME.
Advertisement
Advertise with NZME.

A lot of people believe there have to be three warnings before someone is dismissed, but this is not necessarily so. "It depends on what the employment agreement says and what the company's policy says."

So, if the employment policy requires three disciplinary actions prior to dismissal, that will be required, but if it doesn't then it will come down to what is reasonable under the circumstances.

"Basically, the overarching test is: What could a fair and reasonable employer do at the time the action or dismissal occurred? So, it's a test of what a fair and reasonable employer could have done. That's the test also taken from Section 103A.

Advertisement
Advertise with NZME.

"In short, if the company has a policy on termination of employment, that must be followed. If there is not one, the action needs to be fair and reasonable in the circumstances. And that's subject to a great deal of debate. A huge body of case law has evolved around that very question — it's always dependent on quite intricate circumstances in regards to the case in hand."

Stewart says some companies might have their own policy documents which reflect their standards of their organisation. "If they do have a disciplinary policy, that might set out a step-by-step process for dismissals. If it does, that must be followed."

She recommends companies have multiple policies dealing with all manner of employment issues, including bullying and harassment, disciplinary matters and conduct expectations. These would avoid uncertainty in the workplace and set standards for employees.

"If a company has a policy, they need to be careful they don't depart from it — that could lead to a claim against them."

Ideally the policy would be made available to the employee to read through so they're thoroughly aware of what's in it. "Some employment agreements say it's the employee's obligation to make sure they're familiar with what's in the policy. And the employment agreement usually states that the employee needs to comply with any policies," Stewart says.

Stewart recommends a lawyer is brought in when creating the policy. "There's a balance between making the policy prescriptive and still flexible enough to cater for the wide range of circumstances the employer is likely to come across.

"So, while they can outline a process, they also need to be careful that it isn't too prescriptive, and likely to trip them up if something happens that doesn't fit into the process. For example, they may say generally that there will be the three steps to dismissal, but there may be circumstances where the employer may go to the third step without needing to follow the first two."

Following a process is also important for the suspension of an employee — many employers think they can simply stand a person down from work, then start the process. A personal grievance can be raised for an unlawful suspension if a process hasn't been adhered to. Fundamentally an employee has the right to work — and there needs to be fairness in the way suspension is implemented.

As far as employees are concerned, if a person feels they have been unfairly dismissed, they should consult a lawyer. If the legal advice is they have been unfairly dismissed, they have the right to raise a personal grievance and bring a claim against the company.

"They have 90 days from the date of the dismissal unless there are exceptional circumstances — but it's quite rare that it's accepted after the 90 days," says Stewart.

Advertisement
Advertise with NZME.

The reason for the 90 days is that the sooner concerns are raised with the employer the better.

"Then there's the possibility for them to resolve it before things get too distant. That's an encouragement for the parties to resolve the issues at the earliest opportunity. Sometimes personal grievances can be resolved quickly."

However, there is a large proportion also that don't get resolved and they may head for more of a formal process, Stewart says.

Save

    Share this article

Latest from Employment

Premium
Opinion

Liam Dann: After Orr – is it time for a Reserve Bank reset?

13 May 05:02 PM
Premium
Economy|inflation

Upbeat outlook: Westpac economists see recovery gathering steam

12 May 05:00 PM
Employment

'Like having our throats cut': Couple called into meeting, both told their jobs were gone

11 May 02:32 AM

Connected workers are safer workers 

sponsored
Advertisement
Advertise with NZME.

Latest from Employment

Premium
Liam Dann: After Orr – is it time for a Reserve Bank reset?

Liam Dann: After Orr – is it time for a Reserve Bank reset?

13 May 05:02 PM

OPINION: The challenges facing the Reserve Bank.

Premium
Upbeat outlook: Westpac economists see recovery gathering steam

Upbeat outlook: Westpac economists see recovery gathering steam

12 May 05:00 PM
'Like having our throats cut': Couple called into meeting, both told their jobs were gone

'Like having our throats cut': Couple called into meeting, both told their jobs were gone

11 May 02:32 AM
Premium
Liam Dann: In a world of grim news, here are five economic bright spots

Liam Dann: In a world of grim news, here are five economic bright spots

10 May 05:00 PM
The Hire A Hubby hero turning handyman stereotypes on their head
sponsored

The Hire A Hubby hero turning handyman stereotypes on their head

NZ Herald
  • About NZ Herald
  • Meet the journalists
  • Newsletters
  • Classifieds
  • Help & support
  • Contact us
  • House rules
  • Privacy Policy
  • Terms of use
  • Competition terms & conditions
  • Our use of AI
Subscriber Services
  • NZ Herald e-editions
  • Daily puzzles & quizzes
  • Manage your digital subscription
  • Manage your print subscription
  • Subscribe to the NZ Herald newspaper
  • Subscribe to Herald Premium
  • Gift a subscription
  • Subscriber FAQs
  • Subscription terms & conditions
  • Promotions and subscriber benefits
NZME Network
  • The New Zealand Herald
  • The Northland Age
  • The Northern Advocate
  • Waikato Herald
  • Bay of Plenty Times
  • Rotorua Daily Post
  • Hawke's Bay Today
  • Whanganui Chronicle
  • Viva
  • NZ Listener
  • What the Actual
  • Newstalk ZB
  • BusinessDesk
  • OneRoof
  • Driven CarGuide
  • iHeart Radio
  • Restaurant Hub
NZME
  • About NZME
  • NZME careers
  • Advertise with NZME
  • Digital self-service advertising
  • Book your classified ad
  • Photo sales
  • NZME Events
  • © Copyright 2025 NZME Publishing Limited
TOP