How-to Guides - Community Resource Kit

E: managing disputes

An employer (and anyone else who is responsible for making decisions) has a duty to be fair, to act in good faith and to hear both sides, especially in situations where an allegation is made against someone, or a dispute arises. The principles of natural justice prevail.

The minimum requirements of natural justice that must be met are set out in the case NZ Food Processing Union v Unilever [1990] 1 NZLR. They are:

• notice to the employee of the specific allegation of misconduct, which the employee must answer and the likely consequences if the allegation is established
• an opportunity (which must be more than a mere token) for the employee to attempt to refute the allegation or to explain or extenuate their conduct
• consideration of the employee's explanation, free of pre-determination and uninfluenced by irrelevant considerations.

personal grievances

Discrimination

An employee will have a personal grievance based on discrimination if an employer or an employer's representative discriminates because of the employee's:

• colour
• race
• ethnic or national origins
• sex (including pregnancy or childbirth status)
• marital or family status
• age
• disability
• religious or ethical belief
• political opinion
• employment status
• sexual orientation
• involvement in union activities, which includes claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.

Apart from the last point, these grounds are the same as those in the Human Rights Act 1993. In some circumstances, different treatment of employees on these grounds is acceptable. These circumstances are set out in the Human Rights Act 1993. If in doubt, contact the Employment Relations Infoline or the Human Rights Commission on free phone 0800 496 877 or by visiting www.hrc.co.nz.

Harassment

Sexual harassment by a person in authority

An employee may have a grievance of sexual harassment against his or her employer if his or her employer or supervisor, or a person with authority in the workplace:

• directly or indirectly asks the employee for sex or some form of sexual activity, either promising preferential treatment in the job or threatening worse treatment or dismissal, or
• directly or indirectly subjects the employee to unwelcome or offensive behaviour through words, visual material or physical behaviour of a sexual nature, and this behaviour is of such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

Racial harassment by a person in authority

An employee may have a grievance of racial harassment against his or her employer if the employer or supervisor or a person with authority in the workplace:

• directly or indirectly shows hostility, ridicule or contempt based on the employee's race, colour or ethnic or national origins through language, visual material or physical behaviour that the employee finds hurtful or offensive, or
• this behaviour is of such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

Sexual or racial harassment by co-workers or customers

• An employee who is sexually or racially harassed in any of the above ways by any co-worker, or by a customer or client, may complain in writing to the employer.
• The employer must then look into the facts. If reasonably satisfied that the complaint is genuine, the employer must take whatever steps he or she can to stop the harassment happening again. This may, for example, involve restricting the access of the customer or client to certain parts of the workplace.
• If the harassment happens again after the employee complains and the employer still has not taken all practicable steps to prevent the harassment, the employee will have a grievance against the employer.

Resolving personal grievances

In the first instance, the Employment Relations Act promotes self-help — where the employee and employer resolve the problem without seeking mediation assistance or having to go to the Employment Relations Authority.

The following steps are a guide to the initial problem-solving process:

1. Be clear about the facts. It is important that whoever is taking the grievance is well-informed. Make sure that what you think has happened or is happening is not just based on assumptions or a misunderstanding.
2. Talk to each other. Employers and employees should try to resolve the problem by discussing it with each other. Both parties are responsible for this. Union members can ask their union, and employers can ask their employers' association, to approach the other party for them.
3. Clarify whether you do have a problem, and if so, what your problem is. Don't delay this step. Discuss your problem with family or friends or advisers to clarify what the problem actually is.
4. Next steps? If the problem is not resolved by discussion, either party may:
   • contact the Employment Relations Infoline, which has a range of services that may help, including information, mediation, or advice on what services are available and how to assess them
   • take the problem to the Employment Relations Authority for a decision. The Authority will consider whether there is still a chance to resolve the problem by mediation. If so, they may direct the parties to discuss other ways to resolve the problem.

The Employment Relations Authority

The Employment Relations Authority is an investigative body that operates in an informal way. It looks into the facts and makes a decision based on the merits of the case, not on legal technicalities. Employers and employees can choose to be represented in the Employment Relations Authority.

The Employment Court

The Employment Court is a specialist court which hears appeals from the Employment Relations Authority. It hears and decides on applications for injunctions to stop unlawful strikes or lockouts. It also deals with breaches of the parts of the Employment Relations Act relating to strikes and lockouts and the right to join or not join an employees' organisation.

Dismissal

Fair dismissal

There must be a good reason for a dismissal (see "Grounds for dismissal") and the dismissal must be carried out fairly otherwise the employee may have a personal grievance claim against the employer (see the Employment Relations Service website, Department of Labour, www.ers.govt.nz/relationships/ending.html#dismissal).

What constitutes fair dismissal depends on the circumstances. However, some guiding principles are:

• any relevant provisions in the employment agreement must be followed
• if an employment agreement does not have a notice period, then reasonable notice must be given. What is reasonable depends on the circumstances
• employees have the right to be told what the problem is and that dismissal or other disciplinary action is a possibility. Employees must then be given a genuine opportunity to tell their side of the story before the employer decides what to do
• the employer should investigate any allegations of misconduct thoroughly and without prejudice
• unless there has been misconduct so serious that it warrants instant dismissal (e.g. theft or assault), the employee should be given clear standards to aim for, and a genuine opportunity to improve. The sort of conduct that warrants instant dismissal may be set out in the employment agreement
• the employer should treat all employees in the same circumstances in the same way, or be prepared to justify the difference.

Explanation of dismissal

If an employee is dismissed, he or she has the right, under the Employment Relations Act 2000, to ask the employer for a written statement of the reasons for dismissal. This request can be made up to 60 days after the dismissal, or 60 days after they find out about the dismissal if that is later.

The employer must provide the written statement within 14 days after such a request. If the employer fails to provide this written statement, the employee may consequently be able to raise a grievance long after the required 90-day limitation period.

Warnings process

Unless the matter is so serious that the employer has no option but to dismiss a worker immediately (e.g. for theft or assault), the employer can put into play a warning process.

A warning process would normally be used in a situation such as an employee's performance or conduct not being up to standard. To give the employee an opportunity to improve their performance or behaviour, at least 3 warnings should be given as follows:

1. The first warning is usually verbal and a reliable witness to the warning should be present.
2. The second warning should be in writing and must contain the first three out of the four elements below. Remember, the employee has the right to reply. When this warning is handed to the employee, it is wise to have the union delegate or at least one other witness present. Copies of this second warning should be sent to the worker's union and placed on file.
3. The final warning is also written but includes the information that it is the final warning and that if the employee fails to work correctly, then she or he will be dismissed.

All warnings should have four elements:

1. The employee should be told by the person issuing the warning exactly what she or he has done wrong.
2. The employee should be told how to do the job correctly (training should be given if the employee does not understand or cannot do the job correctly).
3. The employee should understand that her or his job is in jeopardy if she or he continues to act in the manner that brought about the warning.
4. The employee must be given the right to speak in her or his own defence.

Other ways of terminating employment

In addition to dismissal, there are a number of other ways in which an employment relationship can end, despite all best efforts to recruit and retain good workers. Some common ones include:

• resignation
• retirement
• end of fixed term agreement
• redundancy
• suspension of employment.

where to get further assistance

The easiest way to obtain further information on the Employment Relations Act 2000 and the Employment Relations Service (ERS) of the Department of Labour, is to view their website — www.ers.dol.govt.nz.

When you need additional information on bargaining or about an issue that has arisen in your workplace, the Employment Relation Service can be contacted on 0800 800 863 or info@ers.dol.govt.nz. They can help you decide which of their services — e.g. mediators or the Authority — is most appropriate to address your issue.

There are also many resources in the community to help you including:

• Employers and Manufacturers Association
• Community Law Centres
• NZ Federation of Voluntary Welfare Organisations (NZVWO)
• community education and training courses e.g. night classes at colleges, institutes of technology or universities
• NZ Employers Federation or individual regional Employers' Associations
• offices of the NZ Council of Trade Unions (which will supply details of the most appropriate employee organisation)
• regional Chambers of Commerce
• Human Rights Commission
• Inland Revenue
• independent consultants in human resources management and/or industrial relations
• legal firms specialising in industrial relations legislation
• other voluntary agencies in your area.

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