What can I do if my employer is not following my employment agreement?
Your employment agreement sets out the promises made between you and your employer. It should explain important parts of your working relationship, such as your duties, hours, pay, workplace, benefits and the processes your employer must follow.
Some breaches of contract are obvious. You may not be paid correctly, receive your agreed hours or be allowed to take leave. Other breaches are easier to overlook. For example, your employer might fail to provide the tools promised in your agreement. They may repeatedly skip your performance or pay reviews. They might ignore an agreed flexible working arrangement or fail to follow a process required by your contract.
These issues may seem small at first. However, a minor breach can still affect your ability to do your job, earn more, manage family responsibilities or feel confident that you are being treated fairly. Here is what you can do if your employer is not keeping their side of your employment agreement.
An employment agreement is a legally binding agreement between an employer and an employee. Both parties are expected to follow its terms. They must also deal with each other in good faith. In general, this means being honest, responsive and communicative. It also means not doing anything that is likely to mislead or deceive the other party. Your employer cannot simply treat your employment agreement as a guide that they can ignore when it becomes inconvenient.
However, whether there has been a breach will depend on the exact wording of the clause. There is an important difference between:
A firm promise that something will happen,
A statement that something may happen,
A benefit that is subject to the employer’s discretion,
A general goal or expectation, or
A process that must happen before a decision is made.
For example, a clause stating that your salary “will be reviewed annually” usually requires an annual review. It does not necessarily require your employer to give you a pay increase.
What are some examples of smaller contract breaches?
Not every breach involves dismissal, unpaid wages or the loss of contracted hours. Smaller breaches can include an employer:
Failing to provide a laptop, phone, uniform, vehicle or equipment promised in the agreement,
Not completing an agreed performance review,
Failing to review your pay at the time stated in your agreement,
Ignoring an agreed work-from-home arrangement,
Regularly changing your workplace when your agreement identifies a particular location,
Failing to provide agreed training, professional development or supervision,
Not paying an agreed allowance or reimbursement,
Requiring you to carry out duties well outside the scope of your role without discussion,
Failing to give the notice required before changing a roster or working arrangement,
Removing a contractual benefit without consulting you, or
Not meeting agreed health and safety or equipment responsibilities.
One missed meeting or administrative mistake may be easy to correct. A repeated refusal to follow the agreement is more serious, especially if it causes you financial loss, stress or difficulty doing your job.
There are a number of things you should do if you think your employer is breaching your contract.
Check your employment agreement
Before raising the issue, read the relevant clause in your employment agreement carefully. Try not to rely only on what you remember being discussed when you started the job. Look for words such as ‘will,’ ‘must,’ ‘may,’ or ‘at the employer’s discretion.' Sometimes entitlements will be ‘subject to business requirements,’ ‘by agreement,’ or ‘where reasonably practicable.’ These words can make a significant difference.
Check relevant workplace policies
You should also check any policies referred to in your agreement. A workplace policy may explain how a contractual benefit or process works. However, a policy does not normally allow an employer to override a clear term of your employment agreement.
Raise the issue early and calmly
Many smaller contract breaches happen because of an oversight, poor administration or a manager who does not know what was agreed. It is usually best to raise the problem early. You might say:
“My employment agreement says that I will be provided with the equipment needed to work from home. I have not yet received that equipment, and this is making it difficult to complete my duties. Can we please agree on when it will be provided?”
Refer to the exact clause where possible. Explain what your agreement says, what has or has not happened, how it is affecting you, what you would like your employer to do, and when you would like a response. Keep the tone practical. Your goal at this stage is usually to get the agreement followed, rather than to prove that someone has done something wrong.
Put your concern in writing
If a conversation does not solve the problem, follow it up in writing. An email creates a clear record and reduces the chance of misunderstanding. It does not need to sound aggressive or overly legal.
For example:
“As discussed, clause 12 of my employment agreement states that my performance and salary will be reviewed each year in July. That review has not yet taken place. I understand that a salary review does not guarantee an increase, but I would like the agreed review to be completed. Could you please confirm when we can meet?”
Give your employer a reasonable opportunity to respond. What is reasonable will depend on the issue. A missing piece of safety equipment may require urgent action. A delayed performance review may allow a little more time.
Be clear about the outcome you want
Think about what would put the problem right. You might ask your employer to:
Provide the agreed tools or equipment.
Reimburse an expense.
Arrange the overdue review.
Restore an agreed flexible arrangement.
Reinstate a contractual allowance or benefit.
Agree on a realistic date for completing the obligation.
A specific request is easier for an employer to respond to than a general statement that you are unhappy.
What if the agreement says my pay will be reviewed?
A pay review is not always the same as a pay increase. If your agreement says your pay will be reviewed each year, your employer should normally carry out a genuine review. They should consider your pay and communicate the outcome to you. However, unless the agreement guarantees an increase or provides a formula for calculating it, the employer may decide not to increase your pay.
The potential breach is often the failure to hold the review, not the failure to award a pay rise. If your employer completes a genuine review and decides that your pay will remain the same, that may satisfy the clause. The position may be different if your agreement promises an automatic increase, a cost-of-living adjustment or movement through a pay scale when stated conditions are met.
What if my employer is not allowing flexibility?
Start by checking whether the flexible arrangement is part of your employment agreement, a later written variation or only an informal practice.
If your agreement guarantees particular days at home, start and finish times, shifts or another flexible arrangement, your employer should not normally remove that arrangement without following a fair process and obtaining your agreement where a contractual change is required.
If the agreement only allows flexibility by mutual agreement or subject to business needs, your employer may have more room to refuse a particular request. They must still act genuinely and in good faith.
Employees also have a legal right to request flexible working arrangements. An employer must consider a formal request and respond in writing as soon as possible, but no later than one month after receiving it. A request can only be refused on recognised grounds.
What if I have not been given the tools needed to work?
If your employer has promised to provide particular tools or equipment, remind them of that obligation. You should also explain if the missing equipment prevents you from completing your work, creates a health and safety risk, forces you to use personal equipment, causes you to incur expenses, or makes it harder to meet performance targets. Do not quietly accept blame for work you cannot complete because the employer has not provided the necessary resources. Raise the problem promptly and keep a record.
If there is an immediate health and safety risk, report it through the workplace’s health and safety process. A safety issue may require faster action than an ordinary contractual disagreement.
What should I do if the issue is not resolved?
If the issue is still not resolved, check whether your workplace has a problem resolution or complaint process. You may be able to raise the matter with your manager’s manager, Human Resources, the business owner, a union representative, a designated complaints contact, or a health and safety representative, where relevant. Continue to focus on the clause, the breach and the solution you are seeking.
When can a contract breach become an unjustified disadvantage?
In some cases, an employer’s failure to follow an employment agreement may result in an unjustified disadvantage. An unjustified disadvantage is a type of personal grievance. It may arise where the employer’s unjustified action negatively affects your employment or working conditions. Whether a smaller breach reaches this level depends on its effect. Relevant factors may include:
How long the breach has continued,
Whether you have raised it before,
Whether the employer has refused to correct it,
Whether you have lost money or a contractual benefit,
Whether it has harmed your health or ability to work,
Whether you have been treated differently after raising the issue, or
Whether the employer has acted unfairly or without consultation.
Not every technical breach will justify a personal grievance. Sometimes the correct approach is to seek compliance with the agreement or pursue a contractual claim instead. If you may have a personal grievance, be careful about time limits. Most personal grievances must be clearly raised with the employer within 90 days of the issue arising or coming to your attention.
What if my employer still will not fix the problem?
If direct discussion and the internal process do not work, outside assistance may help.
MBIE offers free early resolution and mediation services. Mediation is a confidential process in which an independent mediator helps the employer and employee try to reach an agreement. You can take an advocate or support person with you. You should usually try to raise the concern directly first, unless it would be unsafe or inappropriate to do so.
The Labour Inspectorate deals mainly with breaches of minimum employment standards, such as minimum wages, leave, unlawful deductions and employment records. It does not usually investigate ordinary contractual disagreements, such as a promised pay review or a benefit above the legal minimum.
An unresolved contractual dispute may ultimately be taken to the Employment Relations Authority. However, it is sensible to get advice before taking formal action.
When should I contact an employment advocate?
Consider speaking to an employment advocate if:
You have raised the issue but your employer keeps ignoring it.
The wording of the clause is unclear.
Several smaller breaches are building up.
You have suffered a financial loss.
Your employer is trying to change your agreement without your consent.
You are being blamed for problems caused by missing tools, training or support.
Your employer reacts badly when you raise the issue.
You are threatened with discipline, reduced opportunities or dismissal.
The breach is affecting your health.
You think you may have an unjustified disadvantage claim.
You are considering resigning because of the breaches.
A time limit may apply.
Do not resign in the hope that you can deal with the issue afterwards. Constructive dismissal claims can be difficult, and employees are generally expected to give their employer a reasonable opportunity to address the problem unless the circumstances make that impossible. Get advice before making a decision that could end your employment.
An employment advocate can review your agreement, explain the strength of your position and help you raise the issue clearly. They can also communicate with your employer, attend mediation and help protect your position if the matter becomes more serious.
FAQs
Can my employer ignore a clause because it is inconvenient?
Generally, no. A binding term does not stop applying simply because it has become inconvenient or expensive. However, the wording may give the employer discretion or allow changes in particular circumstances.
Does a pay review mean I must receive a pay rise?
Not necessarily. A promise to review your pay usually requires your employer to consider it genuinely, but it does not automatically guarantee an increase. Check whether your agreement promises a review, a fixed increase or movement through a pay scale.
Can my employer change my employment agreement without asking me?
An employer generally cannot unilaterally change an agreed contractual term. Proposed changes should be discussed in good faith, and your agreement will normally be required. Some clauses may already allow limited changes, so the wording matters.
Should I raise a small breach in writing?
Yes. You can begin with an informal conversation, but a written follow-up creates a clear record of the clause, the issue and your requested solution.
Can I be punished for asking my employer to follow my agreement?
Your employer should not retaliate against you for genuinely raising an employment concern. If you are threatened, disciplined, disadvantaged or treated differently after speaking up, get advice promptly.
Is every breach a personal grievance?
No. Some breaches are contractual disputes rather than personal grievances. A personal grievance for unjustified disadvantage generally requires an unjustified employer action that negatively affects your employment or working conditions.
How long should I give my employer to respond?
That depends on the problem. An urgent safety or equipment issue may need immediate attention. An administrative matter might reasonably take several working days. Give a clear response date and explain if the matter is urgent.
Can I go directly to mediation?
Yes. MBIE offers free employment mediation. It is normally helpful to raise the concern with your employer first, although you may apply directly where doing so would be unsafe or inappropriate.
Should I resign if my employer will not follow my agreement?
Do not resign without getting advice. Resignation can affect your options, and constructive dismissal claims have a high threshold. An advocate can help you decide what steps to take while preserving your employment and legal position.
Small breaches of your employment contract should not simply be ignored. A missed review, an unprovided tool or an ignored flexibility clause may not seem as serious as unpaid wages or dismissal. That does not mean it is unimportant. Your employment agreement contains commitments that shape your working life. You are entitled to ask your employer to follow them.
Raise the issue early, refer to the exact wording, explain its effect and ask for a practical solution. If your employer refuses to engage, the issue keeps happening or you are treated badly for speaking up, it may be time to get support. Mathews Walker assists employees with workplace disputes on a no win no fee basis. If you believe your employer is breaching your employment contract, get in touch with Mathews Walker today for a free consultation.
MathewsWalker.co.nz | Employment Problems Solved | 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.
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