Employment Lawyer for Termination of Employment in Albany

Employment Lawyer for Termination of Employment in Albany, Auckland

Having an employee that disrupts your staff and customers or is not effective in their job can be very frustrating for an employer. Many bosses would like to sack an employee but dismissing an employee is not easy. In fact, if you go about the process in the wrong way, then the company can be liable to legal charges. Talk to a lawyer before you undertake any disciplinary action with any staff members. This article is not legal advice but is intended to give you an indication of some of the requirements of dismissing and employee in New Zealand.

You’re fired – image imagerymajestic

A lawfully acceptable termination of employment for your workers must be:

• Procedurally done in a fair way
• Warranted as a result of certain actions

Any warranted dismissal must be within genuine reasons, not some personal dislike by the boss, while the fairness will depend upon the circumstances or the actions of the employee. In some situations, the employer will have given a warning before dismissing an employee and in some situations a warning may not be required as shown below.

In the event of an employment dismissal, an employee can head to the Employment Relations Authority to open a personal grievances claim based on any unlawful dismissal or warning issued by the employer. The employee stands to be compensated for lost wages and distress damages if the dismissal is found wanting.

The Employment Relations Service is a section of the NZ Department of Labour and is there to help deal with employment problems by providing information and mediation services. Remember that to justify the employment dismal a genuine reason must exist. Employers do have legal grounds of dismissing an employee without giving any warning as shown below.

A Serious Employment Misconduct Dismissal without a Warning

Cases of serious employment misconduct can warrant a dismissal without any previous warning. Also called a summary dismissal, the employer can dismiss the employee without giving any notice. Normally notice is required but under certain circumstances, this is not the case. Nevertheless, the whole dismissal procedure must be done in a fair manner. An employer can be dismissed immediately for one or any of the following issues in the conduct of the employee in the work place:

• Dishonest conduct like theft
• Physical assault on other employees in the workplace
• Breaking of the rules of the employment contract
• Disobeying a direct reasonable or lawful directive from the employer
• Possession of illegal substances in the workplace

Regardless of the dismissal, gross misconduct or otherwise, the employer is legally bound to give all outstanding wages and entitlement payments as recorded in the employee’s salary in the employment contract.

Poor Work Standard

An employer cannot sack a staff member for the first incidence of poor work or minor misconduct. The legal process requires the employee to give an initial oral warning, then a formal written notice, and a final warning in writing, which will then warrant the dismissal. However, as simple as this sounds, there are guidelines for how those warnings should be phrased so it is highly recommended that you talk to a lawyer specialising in employment law prior to issuing any warning.

The Steps in Dismissing an Employee – Procedurally Fair Dismissal

A procedurally fair dismissal must adhere to certain steps for it to be lawfully acceptable. The steps are applicable to both an immediate dismissal without a warning and a summary dismissal following the three warnings outlined above. They include:

• The alleged behaviour should be fully investigated.
• The employee should be allowed to have a lawyer or support person present during the presentation of the allegations.
• The employer should hear the employee’s side of the story.
• The employer should hear the employee’s side of the story.
• Informing the employee of the nature of the allegations indicating the possibility of a dismissal based on the alleged actions.

If the issues do not warrant a summary dismissal, then the employee should be warned and given a chance to improve on his or her faults before the dismissal. The employer should assist the employee where necessary. This should follow the three warnings process.

The staff member must receive the rationale for the decisions agreed upon, which should be done before the employment dismissal. Note that, the employee is within their legal rights to request a statement in writing for the reasons for the employer’s action. This must be a maximum of 60 days after being dismissed. The employer should deliver their statement within a fortnight

The dismissal notice must be in writing.

Summing up

Lawyer if sacking staff – imagestockimages

As you can see this is a complex issue and to repeat, you must follow the process exactly and use specific phraseology. In truth, this area of law is generally even outside the scope of most general practice lawyers so you should be very careful before you proceed. Any employer is best advised talk to an expert employment lawyer to avoid complications and sometimes, huge financial damages down the track.

At McVeagh Fleming and Co in Albany an employment lawyer provides advice and legal services on dismissing an employee for North Shore businesses. Call them or go to their website here.