FAQ: Can I Be Sacked For Making A Complaint At Work?

Speaking up at work can feel risky. Maybe you've reported bullying, raised concerns about unsafe equipment, complained about unpaid wages, or questioned whether your employer is following the law. If you're worried that raising a problem could cost you your job, you're not alone.

The good news is that New Zealand employment law provides important protections for employees who raise genuine concerns. While employers can still manage performance or misconduct fairly, they cannot lawfully punish you simply because you made a complaint or raised a health and safety issue.

Can my employer dismiss me because I made a complaint?

Employees have the right to raise genuine concerns about their workplace without fear of retaliation.  If your employer dismisses you, disciplines you, reduces your hours, overlooks you for promotion, or otherwise treats you unfairly because you raised a legitimate concern, they may have acted unlawfully.

The law recognises that employees should be able to speak up about problems without putting their employment at risk.Several pieces of New Zealand legislation provide protection.

Employment Relations Act 2000

The Employment Relations Act requires employers and employees to deal with each other in good faith.

Good faith means employers must be honest, communicative, responsive, and not mislead or deceive employees.

The Act also allows employees to raise a personal grievance if they have been:

• unjustifiably dismissed

• unjustifiably disadvantaged

• discriminated against

• sexually or racially harassed

• subjected to duress regarding union membership.

If your employer treats you badly because you raised a genuine workplace concern, you may be able to claim an unjustified disadvantage or, if your employment ends, an unjustified dismissal.

Health and Safety at Work Act 2015

The Health and Safety at Work Act encourages workers to speak up about health and safety issues.  Workers have the right to:

• report unsafe work practices

• identify hazards

• raise concerns about risks

• participate in improving workplace safety.

Employers must not dismiss, disadvantage, or otherwise retaliate against someone because they exercised their health and safety rights.  Health and safety works best when everyone feels comfortable speaking up.

Protected Disclosures (Protection of Whistleblowers) Act 2022

If you report serious wrongdoing within your workplace, you may also receive protection under the Protected Disclosures Act.  This legislation protects people who report matters such as:

• serious health and safety risks

• unlawful conduct

• corruption

• misuse of public funds (in relevant organisations)

• conduct creating a serious risk to public safety.

If the disclosure is made appropriately, your employer must not retaliate against you because you raised the concern.

What counts as retaliation?

Retaliation isn't always obvious.  Sometimes it happens immediately after a complaint. Other times it develops over weeks or months.  Examples include:

• suddenly beginning disciplinary action without good reason,

• placing you on a Performance Improvement Plan that seems unjustified,

• reducing your hours or shifts,

• changing your duties to less desirable work,

• excluding you from meetings or opportunities,

• treating you differently from other employees,

• refusing training or promotion opportunities,

• creating a hostile work environment, or

• dismissing you shortly after your complaint.

The timing of these events can sometimes be important. If your treatment changes significantly after raising concerns, it may be worth getting advice.

How can I raise a complaint safely?

If possible, try to approach any issue professionally and keep good records. Where possible, put your concerns in writing to create a record of what you reported, when and to whom.  Be factual about the situation, focussing on what happened, when it happened, who was involved, and why you're concerned.  Avoid exaggerating the situation or making personal attacks.  Follow any workplace procedures or policies in place for reporting issues.  If you're worried about possible consequences of making a complaint, consider speaking with your union, a trusted support person, or an employment advocate.  Getting advice early can often prevent situations from becoming much worse.

What should I do if I think I'm being retaliated against after raising my complaint?

Don't ignore it.  If you notice changes shortly after raising concerns keep detailed notes of what is happening, save any relevant emails and documents, ask your employer for explanations for what is happening where appropriate, and consider raise your concerns in writing.

One of the biggest mistakes employees make is resigning too quickly.  If you resign without obtaining advice, you may unintentionally weaken your legal position.  Instead, seek advice and make sure you understand your rights before making any major decisions.  

If you've suffered because you raised a genuine workplace concern, you may have grounds for a personal grievance.  Depending on what happened, this could involve unjustified disadvantage, unjustified dismissal, or discrimination.  In most situations, employees must raise a personal grievance within 90 days of the action or event they are complaining about, so if you are concerned, act quickly to ensure you don’t miss this deadline.

When should I get legal advice?

Consider obtaining advice if:

• you've been dismissed after making a complaint

• disciplinary action starts soon after raising concerns

• you're being treated differently from other employees

• your employer ignores serious health and safety issues

• you're being pressured to withdraw your complaint

• you're considering resigning because of retaliation.

Early advice can help you understand your options before the situation becomes harder to resolve.

Employees should never have to choose between keeping their job and raising genuine concerns.  New Zealand law recognises that safe workplaces depend on employees being able to speak up. While employers can still manage legitimate performance or conduct issues, they cannot lawfully punish employees simply for making a genuine complaint or reporting a health and safety concern.

If you believe you've experienced retaliation after speaking up, don't assume there's nothing you can do. Get in touch today for a free consultation.

MathewsWalker.co.nz | Employment Problems Solved | 0800 612 355

Contact Mathews Walker

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.