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Employers’ justifications in cases involving personal grievance on the ground that an employer affected employee’s employment to his or her disadvantage by its unjustified actions, by Eugene Duhovnikoff BA/LLB

Employers’ justifications in cases involving personal grievance on the ground that by its unjustified actions an employer affected an employee’s employment to his or her disadvantage.

To establish a cause of action an employee must meet each of the elements of section 103(1)(b) of the Employment Relations Act 2000 to the effect that, for the purposes of the Act, ‘personal grievance’ means any grievance which an employee may have against the employee’s employer or former employer because of a claim and that the employee’s employment, or 1 or more conditions of the employee’s employment, was affected to the employee’s disadvantage by some unjustifiable action on the part of the employer.   A complaint alone would not be enough to amount to a personal grievance under the Act if it did not meet each of the above mentioned elements.

The test of the justification for the dismissal is also found in section 103A of the Employment Relations Act 2000. It concerns whether dismissal was the action which a fair and reasonable employer would have taken in the circumstances at the time. It encompasses whether the employer genuinely believed that misconduct had occurred and whether the misconduct found to have occurred was such that a decision to dismiss was a reasonable response.

The test requires a consideration of whether the employer sufficiently investigated the relevant allegations before imposing the dismissal; raised its concerns with the employee before taking that action; gave the employee a reasonable opportunity to respond; and considered the explanation genuinely before taking action. The Authority can take other factors into account, but must not determine the dismissal to be unjustified if any defects in the process were minor and did not result in the employee being treated unfairly.

 

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Reeves/Duhovnikoff & Associates Ltd. 2017

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