7 Signs Of Unfair Dismissal And What You Can Do About It.

Being dismissed from your job can be hard on you from an emotional, financial, and professional perspective. If the dismissal didn’t follow fair procedures, you may have grounds to challenge it as an unfair dismissal under New Zealand law. Here are seven key signs and the legal principles behind them.

1. There was no genuine reason related to your performance or conduct

Under section 103A of the Employment Relations Act 2000, an employer must have a 'substantively justifiable' reason for dismissal. If your employer gave no clear or valid reason, or the reason doesn't stack up, you may have been unfairly dismissed.  Your next step should be to request a written explanation under section 120, which requires employers to provide reasons for dismissal upon request.

2. There was a lack of a fair and transparent investigation

Section 103A also requires that the employer's actions be fair and reasonable. This includes conducting a fair investigation into any alleged misconduct or poor performance.  You should make a note of any issues with the process and use them to support your personal grievance claim under section 114.

3. There was no opportunity to improve

If you were dismissed for performance issues without warnings or a chance to improve, this likely breaches the requirements of a fair process under the Employment Relations Act. If you feel your performance management process was unfair, document your performance history and any absence of formal performance management processes.

4. The company's code of conduct or policies were not followed

Employers are bound by their own policies and procedures, as these often form part of the employment agreement, either expressly or implicitly under section 63A.  Ask your employer for a copy of the disciplinary or performance policy to  compare to your experience.

5. Your dismissal was discriminatory or prejudiced

Dismissals that are discriminatory may violate the Human Rights Act 1993 or section 104 of the Employment Relations Act, which prohibits dismissal on certain grounds, including union involvement, family status, or sexual orientation.  If you feel you may have been discriminated against you may want to consider filing under both employment and human rights frameworks, especially if protected attributes are involved.

6. There was no Genuine redundancy process

Redundancy must be genuine and procedurally fair, as clarified in section 103A. Employers must consult, explore alternatives, and be transparent about the process.  If you are not sure if your redundancy is genuine, ask for the business reasons and evidence that selection criteria were fair and unbiased.

7. You were not given required notice or severance pay

Under section 58 of the Employment Relations Act, employees must receive the notice period stated in their employment agreement, or the employer must provide pay in lieu. Failing to do so adds weight to an unfair dismissal claim.  If your notice period or pay is missing, claim both for unpaid entitlements and as part of your grievance.

What should you do next?

Act quickly -You must raise a personal grievance within 90 days, as per section 114.

Seek legal advice - An employment advocate can help you file your grievance and pursue mediation or ERA action.

Dismissal doesn’t have to mean defeat. Recognising these legal red flags for unfair dismissal and responding promptly can help you recover lost income and move forward with confidence. If you have been dismissed and believe the reason or process is on the wrong side of the law, get in touch with an expert for a free consultation.  mathewswalker.co.nz | 0800 612 355

Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.