Personal grievance

[lmsmith]

Does anyone know anything about raising a personal grievance for wrongful dismissal? Basically, my partner had a disciplinary meeting and was told that he would be told the outcome in a few hours (but specifically told he would not be terminated).

During this period, more information became available to them, and they then called him up and fired him. He was a team leader and was fired for 'a serious breach of heath and safety' for not stopping his team from playing games that could have caused injury. Most of them he didn't even know about, and he had told them to stop. No one was hurt (or even came close). It was his first 'offence' - he's never had any sort of warning before, and the very same day another supervisor was not told off when he saw someone climbing on the racking at work and didn't say anything at all - but the person who was climbing on the racking was given a first and final warning.

My argument is that in the disciplinary meeting, they even said that they couldn't take into account new information, which is exactly what they later did. Therefore, it was procedurally unfair. Because he was fired he has lost the opportunity for a reference, over $3000 worth of shares and other benefits.

[phoenix44]

is he part of the union?

hire a lawyer too.

[lmsmith]

Not part of the union, but that shouldn't matter. I'm a 4th yr law student so I can do all the research myself, but I wanted to see if anyone out there's been there, done that with this sort of thing and can offer any advice.

[phoenix44]

i know it should not matter, but unions exist to ensure such unfair dismissals do not occur. as do laws come to think of it, so it sucks that something like this is happening.

I suppose it would depend on the type of game that was played. a game of touch would be reasonable but a game involving fire, weapons or one that can cause bodily harm would not.

without having to call in family favours that is all i can say for now unfortunately. Although I was not aware that one warning can result in instant dismissal - which has to be reserved for the severest breaches of contract/ethics.

[livingart]

what happened was not a cuse for instant dismissal unless there had been previous infractions

onless as phoenix has stated

there are employment laws in place for proper dismissal

on the surface it seems the company may have taken an oppurtunity to save some money

but may cost them more in the long run

what are the full facts of the situation?

citizens advice should be able to privide contact details for an employment lawyer

[lmsmith]

what happened was not a cuse for instant dismissal unless there had been previous infractions

onless as phoenix has stated

there are employment laws in place for proper dismissal

on the surface it seems the company may have taken an oppurtunity to save some money

but may cost them more in the long run

what are the full facts of the situation?

citizens advice should be able to privide contact details for an employment lawyer

We're going to citizens advice tomorrow and community law. I've already spoken to some people from uni about it and am in the process of reading copious amounts of case law on the topic.

From a practical sense, do we notify them of our intention to persue a personal grievance and give them our case, or notify them and lodge it with the employment relations authority?

They are the very basic facts - the 'serious breach' was the team riding in a wheelchair.

[alanmin4304]

Even though you have knowledge of law it is a specialised field and you will need advice from people with a good knowledge in that area. The union I was associated with for many years would take the case of non members for a fee and I have had some experience with workmates in this situation where each received a sum of money as a copensatory payment for wrongful dismissal but that is only useful if it is a good union with the required ability. The law requires that a particular process be gone through and most employers do not follow it. Sometimes this can be used as a way to dismiss someone they do not wish to employ so they may or may not get their job back. One friend has a case going at the moment and another got the best part of $100K. There is contract law covering the employment contract as well as employment law.

[livingart]

get your partner to write up the event and subsequent conversatins as it went down

the way any comments passed at the time made them feel is worthwhile adding also

[alanmin4304]

As LA says it is a good idea to record everything that was said as well as written so that it can be accepted as fact when the time comes much later to recall it. We were trained to keep a diary and record all stuff like that as part of the job and that is why so many workmates have walked away with a cheque. It is less formal than a normal court but if you can say that this is what the person said because I wrote it in my diary 5 minutes after the conversation it probably will hold more weight than an employer trying to recall stuff from memory. For some reason many employers seem to think that employment legislation does not apply to them and they will try to dismiss people for the wrong reason or in the wrong way. The legislation is there to protect both parties and does if applied properly. If you employ a tradesperson you expect them to be able to carry out the work legally and an employer and employee have that same responsibility in my view.

[Barrie]

the employment court fixes these problems

My first step would be to make sure he has a case.

The easiest way is to contact the department of labour for their advise.

Be aware that with the swift action they have taken means that they did want to get rid of him for a reason of some sort and if reinstated, they still will not be happy with him.

I have been involved with a few of these from both sides although I was not involved directly, I was asked to be support/witness for an employee and twice as a witness for an employer.

I also think that its important to think about wether he wants to be part of a company that simply dose not want him. If he dosnt, then maybe he can negotiate his final pay.

On the reference side of things, he is legally entitled to a reference and I would recomend that he ask for one regardless of what they put in it as that may well be an important part of his case against him. What they (employer) put in it must be factual but if hes been dismissed, they will start offering opinuns and that will help as well.

[alanmin4304]

It is also possible to negotiate the content of the reference as part of the settlement. Barrie is correct in that if they do not wish to employ him it would be a hard place to work and this is why my workmates ended up with a good reference and a cheque but no job. You can negotiate a compensatory payment which is not income and therefore not taxable or counted as income when applying for a benefit.

[Scottie841]

You will also need to check his contract and see if it says that instant dismissal is a possible outcome if there has been a "serious breach" also was the "new information" taken as the same or as another issue. If it was taken as another issue then the meeting he had would have resulted in a final warning and the new information would have then been after a final warning

[supasi]

Hi, Sorry to hear about this. The timing is aweful being nearly Christmas and all. Sorry I am no help here, but after reading Alan and Barries replies I think they are giving some good advice.

Can I ask what industry the job was?( I am assuming it is Manufacturing of some sort?)

I wish you all the best. Its just unfortunate that when you should be able to enjoy yourselves over the festive season, you have to deal with this sort of thing.

Be perssistant and dont give up.

Good luck

[Scottie841]

I found this that is interesting

Dismissal

There must be a good reason for a dismissal and the dismissal must be carried out fairly. Otherwise, the employee may have a personal grievance claim against the employer.

What is fair depends on the circumstances. Some general principles must be kept in mind:

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, 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.

It is in everyone's interests that it is clear from the start what the job requires, what behaviour is expected, and what could lead to dismissal.

Explanation of dismissal

If an employee is dismissed, he or she has the right under the Employment Relations Act 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.

The employer does not have to provide a written statement of the reasons for dismissal if an employee is on a trial period and is given notice of dismissal during the trial period.

Also this is a good site for a step by step for you http://www.unfairdismissal.co.nz/?_kk=u ... agodAgtOmg

[lmsmith]

He doesn't want his job back - before this happened he felt like he was being picked on by management and knows it would just be worse if he went back. His biggest worry is that he negotiated so much with them to get them to allow him to do this job while he was finishing uni, and he's worked his bum off for the last few months of being in the leadership position and his personal life has suffered because of it. He had made a decision that because of the culture and environment, he was going to stay until he finished uni (his original plan that he told them about when he started the leadership job) instead of staying on and working his way into higher management which is what they hinted as wanting.

We've made huge sacrifices for him to do this job so he has experience in the workplace, and it's taken a toll on our lives. We know that this personal grievance business will too, but at least if he gets an apology and a reference out of it, he'll feel vindicated that he did a good job. The store manager (who was undertaking the disciplinary procedure) even said that apart from this instance, he's been a model employee.

The job was in retail in a major hardware store. I work there too, which creates more issues in the situation.

I think legally, he has a very strong case - there are two parts to dismissal:

The employer must:

> have a good substantive reason for the termination (so in this case a serious breach of safety) and

> have been procedurally fair during the process, including giving the employee a real chance to prepare and state their case without prejudice.

I think our argument on procedural fairness is strongest, but we also have an argument that it was not a serious breach as most of the game playing he didn't even know about and the stuff he did know about was accepted by them as not being a firing offence.

[Scottie841]

It is hard to say without hearing the other side of the story (from the store) but having worked for them (assuming it is the one I think it is) and seen the lengths they will go to to have their way it might be hard. The store is definatly a "boys club" and unless you are in the club they do what ever they want. For example they took a sales rep to court over the theft of a product and did not do anything to the person that escorted him through the fromt door. I had to go to court and give evidence for the accused and he got off because of the fac that no action was taken against staff.

[lmsmith]

Well, we've got the advice of 2 lawyers and are perusing an action for personal grievance for wrongful dismissal, as well as breach of privacy as they made an announcement to all of the team telling them why he had been fired (which makes it very difficult to be at work because everyone wants to talk to me about it and it upsets me and makes me cry every time).

We're claiming for loss of income until he gets another job, then when he does, the difference between his new income and his old income until the time he told them he would be leaving (June 2010), an apology, a good reference, to tell the team that he had resigned rather than be fired, the shares that he would have been entitled to if he resigned and damages for humiliation, distress, and breach of privacy and legal costs.

Any idea how much we should be asking for for the damages? We're not prepared to negotiate about what's written above, but we will negotiate on the amount of money in damages. We're thinking $1000 per year he's worked there for humiliation ($4000), $4000 for distress and $5000 for breach of privacy because it will potentially affect his future earnings as well as $5000 for loss of opportunity. This is $18,000.

We're willing to negotiate (not down to nothing, but we'll see where it goes), but are also willing to sue them in tort for defamation, bring the Privacy Commission into it for the breach of Privacy, in contract for breach of contract and also report them to the labour department for breaches of the Human Rights Act, so we have a reasonable amount of leverage to play with. I am also willing to prosecute them separately for some other stuff they have done (on my behalf, not his)

Does anyone have any suggestions or comments? Anyone who's been through this before, is this a reasonable amount to ask for?

[Anthony]

all i have to say is be careful... there going to have a lot more money then you are that's gonna get them better lawyers and such, working for such a powerful conglomerate myself i understand the power they hold.

[alanmin4304]

It is hard to say. It is easier to come down than up so I would go for the max. The advantage of going with the union is that they have knowledge of any other settlements at that place or similar places to use for leverage or as a guideline.

[Barrie]

Well, we've got the advice of 2 lawyers and are perusing an action for personal grievance for wrongful dismissal, as well as breach of privacy as they made an announcement to all of the team telling them why he had been fired (which makes it very difficult to be at work because everyone wants to talk to me about it and it upsets me and makes me cry every time).

We're claiming for loss of income until he gets another job, then when he does, the difference between his new income and his old income until the time he told them he would be leaving (June 2010), an apology, a good reference, to tell the team that he had resigned rather than be fired, the shares that he would have been entitled to if he resigned and damages for humiliation, distress, and breach of privacy and legal costs.

Any idea how much we should be asking for for the damages? We're not prepared to negotiate about what's written above, but we will negotiate on the amount of money in damages. We're thinking $1000 per year he's worked there for humiliation ($4000), $4000 for distress and $5000 for breach of privacy because it will potentially affect his future earnings as well as $5000 for loss of opportunity. This is $18,000.

We're willing to negotiate (not down to nothing, but we'll see where it goes), but are also willing to sue them in tort for defamation, bring the Privacy Commission into it for the breach of Privacy, in contract for breach of contract and also report them to the labour department for breaches of the Human Rights Act, so we have a reasonable amount of leverage to play with. I am also willing to prosecute them separately for some other stuff they have done (on my behalf, not his)

Does anyone have any suggestions or comments? Anyone who's been through this before, is this a reasonable amount to ask for?

A reference must be nothing more than facts

By saying that, all a reference needs to say by law is lenght of time worked and time keeping

Things like left of his own free will could lead the writer to be sued by a future employer for a false reference. I belive that if you insisted on that cl;ause, they would have to say something along the lines of there were issues around the termanation that were resolved which to me as an employer would have me run a mile.

A reference stating the length of service and the time keeping is all I would be asking if I were you

Maybe a list of duties?

[Aquatics NZ]

I went through a constructive dismissal case myself.

Unfortunately, I can't give too many details due to the non-disclosure agreement (it was settled out of court)

Basically, I handed in a two page resignation with all of the reasons why I was resigning and stated that because of how I felt, I did not need to give two weeks notice.

I left, contacted the franchise owners, and two weeks later I walked away with a substantial sum. I can tell you, 5 digits for a 16 year old is very very good. The did offer me my job back but I said no and pushed for the compensation.

Anyway, I suggest you get your partner to list and explain everything leading up to the incident, the incident itself, as well as different company policies etc etc.

Then contact the employment relations authority for help with mediation if you want it etc.