Magazine article New Zealand Management

EMPLOYMENT LAW: Personal Grievances ,Co Minimising the Risk

Magazine article New Zealand Management

EMPLOYMENT LAW: Personal Grievances ,Co Minimising the Risk

Article excerpt

Byline: Greg Cain and Amy Cunningham

Sometimes personal grievances can seem like the bane of an employerCOs existence. An employee is performing badly, or having far too much time off sick. The employer tries to manage the issue and then faces a personal grievance claim.

All is not lost, however: with a little planning and patience, employers can safely negotiate the minefield.

There are a number of grounds upon which a personal grievance claim can be brought, but by far the most common one is unjustified dismissal. The main reasons for dismissal (and therefore the basis for the claim itself) are misconduct, poor performance, redundancy and ill health.

Misconduct Misconduct can be anything from theft to assault, although the types of behaviour that can amount to misconduct are so many that it is not possible to list them all here. In order to discipline an employee for misconduct, it is necessary to ensure that the correct steps are followed. As for other types of dismissals, having a good reason is not enough: a fair process must be followed.

A fair process must be followed in investigating employee misconduct. The leading case C[pounds sterling]NZ Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35C[yen] outlined three hoops an employer must jump through when investigating alleged misconduct:

1) notice should be given to the employee of the specific allegation and of the likely consequences if it is established;

2) the employee should have a real opportunity to attempt to refute the allegation or to explain or mitigate their conduct; and

3) the employer should give an unbiased consideration to the employeeCOs explanation (avoiding predetermination).

The Court stated that the failure to observe any of these requirements will usually render disciplinary action unjustified. It might be added that it is important to carry out a proper investigation before commencing disciplinary action, and to allow the employee to be represented.

Poor performance Managing poor performing employees is another difficult task for employers. It is important that employers first ensure that the expectations of employees are clear. …

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