In this article, we will explore three areas of interest and give guidance on what employers can do to address problems in the workplace.
Areas of Interest
Unjustified dismissal is one of the most common categories of personal grievance. A spike in unjustified dismissal cases was observed following the transition into level 1 during the first lockdown period in 2020.
Although Employment Relations Authority (ERA) decisions are not binding, the general approach has been to treat unjustified dismissal cases with a high level of scrutiny. For example, although the pandemic put businesses on hold, various ERA decisions, such as De Wys v Solley, reinforced that this did not exempt employers from their obligations. The ERA emphasised that Covid-19 does not excuse employers from adhering to proper and fair processes while displaying good faith.
Bruce Campbell v Value Tyres Limited offers valuable guidance to employers wishing to restructure their business. Campbell was dismissed from his four-year marketing manager position following corporate restructuring and was not redeployed. A new role had been created requiring applicants to have at least ten years of experience in the tyre industry. Investigations found no issues with the applicant’s performance and discovered conversations between Campbell’s boss and a long-time acquaintance X. These conversations suggested a possible offer and acceptance regarding the position before the restructuring had commenced.
Believing X’s hiring to be predetermined, Campbell alleged a personal grievance as well as a breach of good faith. The ERA ultimately decided that while the restructuring process was enacted for genuine reasons and would have occurred irrespective of Mr X’s involvement, VTL’s conduct concerning Mr Campbell was more likely than not, driven by ulterior motives. The main rationale was that Donaldson was not legally placed to label X as the more suitable appointee. The requirement of 10 years ruled out Campbell from the offset. VTL owed Campbell a duty of good faith and had breached said duty upon failing to share all relevant information and providing Campbell with an opportunity to comment on his dismissal.
Unjustified dismissal may once again become a hot topic in the Employment Law sphere as the deadline for the vaccination of all managed isolation and MIQ workers looms near. While the Government recommends for all unvaccinated workers to be moved into other roles, the reality is that not all employers may have the capacity for redeployment. There is a potential for people to lose their jobs, which could attract legal action where there is no contractual right to terminate.
A significant spike in the number of personal grievance claims was observed due to COVID-19 and the subsequent lockdowns. This number further skyrocketed following the introduction of the wage subsidy.
More than 6,000 claims were lodged between March and October, which was ten times as many compared to the same seven-month period in 2019. 5,500 complaints related to the wage subsidy, primarily on the grounds of receiving no pay or being forced to take leave. Since then, the wage subsidy complaints have decreased significantly.
The pandemic also caused a backlog of ERA cases as there was a total of five months where the Authority was unable to hear cases last year. Investigations also had to be cancelled and rescheduled. In some instances, cases were vacated or cancelled without proper justification. The combined effect of the delays and the increase in cases further exasperated the backlog. While the consequences of the backlog are still being felt, hopefully, the recent appointment of three new authority members should help to reduce the delay. More appointments are to be expected over the coming months.
Bullying and Harassment at Work
Bullying and harassment at work are unfortunately very much alive in New Zealand, as confirmed in a recent MBIE report. As many as one in five workers are affected each year, with women and minorities experiencing the highest levels of bullying. It can and is likely to have a lasting impact on the health and wellbeing of harassed and/or bullied individuals.
Like other personal grievance claims, bullying and harassment complaints also rose amid Covid-19 alert level changes. Recently in March, the ERA in Auckland sent out letters to all parties that there would be a three-to-four-month delay before cases would be assigned.
An alleged personal grievance may arise from an omission or omissions on the employer’s part. In cases of harassment or bullying by one (or more) employee to another, the victim may have a claim under s 103 if the employer fails to take the necessary steps to address the situation. Failing to do so would reflect a breach of their duty of good faith and obligation to provide a safe workplace.
Despite the commonality of bullying and harassment, employees may be reluctant to speak out. Some of the reasons cited by the MBIE report include fear that doing so might affect future employment opportunities, the risk of traumatisation and the adversarial nature of the resolution process. On a positive note, growing awareness has encouraged many employers to develop policies and processes to better address such situations. It is however essential that these new policies translate into the working environment to create one that is more positive and supportive.
MBIE however, has emphasised that more needs to be done by the Government and Employers alike to properly support those who have experienced harm. CultureSafe NZ has recently presented a petition to Parliament calling for law changes to help make the process easier and less painful for victims to lay complaints.
Advice for Employers
Employment NZ has various recommendations for businesses to prevent and address problems that could form the basis of personal grievance claims. We strongly recommend devoting some time to developing both preventative and responsive strategies. We also recommend approaching such complaints promptly, with compassion and to try to understand the employee’s concerns as best as possible.
In terms of preventative strategies, a good starting point would be to examine both the company culture and the employment relationship itself. Employers must maintain a constructive and healthy employment relationship with their employees. While is there no one right approach, it is important to communicate with your employees to ensure all voices are being heard. This also includes dealing with each other in ‘good faith’ and maintaining fair procedures when taking disciplinary action or structural changes. Furthermore, when making decisions that may or will impact the employee’s role, ongoing consultation is necessary.
Early prevention is important and can also help to prevent the escalation of problems. However, the recent MBIE report emphasised that it is equally important to have a good practice for responding to issues, especially regarding bullying and harassment. This is because prevention is unlikely to stop it entirely.
Employers should also strive to meet with employees to discuss concerns and performance regularly. A mediator may be engaged to help talk-through and try to resolve the issue where a personal grievance is raised. If a grievance is discovered to be unfounded, as an employer, you must help the employee understand why that is the case with clear evidence. Alternatively, where a grievance is made out, as an employer, you must be prepared to admit your mistakes and take steps to remedy the situation.
If mediation or other informal approaches are unsuccessful, disciplinary action can be taken. Disciplinary Action should be treated as a corrective measure to prevent further conduct, and includes warnings, dismissal, suspension from work and counselling. Such action must be fair and reasonable in all circumstances. The policies and process must be made known to the employees, and the employer must have a good reason for undertaking the disciplinary action.
Alternatively, if an issue cannot be resolved, you may need the decision of the ERA or the Employment Court to determine whether the employee has been treated unfairly. Settlement is also a potential option.