Workers are constantly subjected to unfair dismissal processes. There is a long and extensive history of these and it is impossible to traverse these in one sitting.

A dismissal itself has a well-established definition which was likely first established in a contemporary sense in the case Wellington, etc, Clerical, etc, IUOW v Greenwich where the employment court provides:

termination of the employment relationship at the initiative of the employer.

This definition was then re-emphasised during the case of  E N Ramsbottom Limited v Chambers, and again in Porirua Whanau Centre Trust v Ngawharau.

The aforementioned definition applies to dismissals on notice, summary dismissals, constructive dismissals, and other forms of dismissal where the situation is not considered a redundancy.

It's all about the employers actions.

In Cornish Truck & Van Limited v Hildenhuys the Employment Court provided that the test for deciding or determining whether an employer's actions constituted a dismissal is an objective measure. The question to be answered is:

Was it reasonable for the employer, or someone in the position of an employer to consider the employment had been terminated.

In regard to this, the Employment Court provided in Concrete Structures (NZ) Limited v Ward that:

logically leaves room for a finding that dismissal occurred even if the employee did not subjectively believe it to be so.

AND

It also logically leaves room for finding that a dismissal occurred even if the employer did not subjectively believe it to be so, and by extension, where neither the employee nor the employer subjectively believed dismissal had occurred.

The Court then goes on to provide that circumstances where the party effected a change in relationship where the relasionship was concluded for whatever reason, could subjectively miss what any reasonable person would observe objectively as being a dismissal, and so then the question becomes: Was that dismissal justified? Was that dismissal, (or action) what a fair and reasonable action that an employer could have done given all of the circumstances.

Deciphering this can get tricky. The long and short of it is to call a representative if you find yourself in any process in the workplace.

If I am not doing my job, can I be fired? Or be forced to resign?

In Furze v Harley Plasterers Limited the Employment Relations Authority provides that:

a common misunderstanding amoungst employer that they can treat someone as having quit there job when the employee fails to do something they are told to do. An employer cannot impose a resignation upon an employee, or characterise the employment as having ended by resignation when the employee does not actively resign. The imposition of the condition (do X, or you will be deemed to have quit) is actually a dismissal.

However, if you are being told do your job or i'll fire you for refusing to do duties you are not trained for, or that are unsafe, or that are not compliant with the law, is something that happens all of the time and it totally unlawful.

It's an employment relationship. Talk it out. But before your do, get representation!

Can my employee just say I am fired without any process?

No. Definitely not. But some circumstances can be confusing when tempers flare. In New Zealand Cards Limited v Ramsay the Employment Court provided that the situation where an employee was treated as having resigned, with no process at all, is not a dismissal or a resignation. And it's all about communication:

Where the communication is equivocal, the employer learns that the employee has misunderstood it as a dismissal contrary to the employers intention but does nothing within a reasonable time frame to correct the employee's false impression. In such a case the employer must suffer the adverse consequences of passively standing by and letting the employee think that a dismissal has taken place.

Picture this: You are going through a employment process, the employer does not get back to you. You are on suspension, the employer cuts you off with no communication and you are left to assume that the employer has fired you. This likely means you have been unfairly dismissed.

The good faith obligations mean parties must remain open and communicative. It is an employment relationship after all. But going into one of these processes without representation means that your employer will dominate the communication in their favour. Get a representative.

There are so many circumstances where the disciplinary process can go wrong that it is simply a fools errand to enter one without representation.

So was/is my dismissal, or process unjustified?

Likely. That fact that you are looking for information means that something is likely off about the entire matter, however, one must consider the concept of unjustified of unjustifiable in employment law.

In Auckland City Council v Hennessy (the person, not the drink, both wonderful) the Court of Appeal provides:

Its integral feature is the word unjust - that is to say not in accordance with justice or fairness. A course of action is unjustifiable when that which is done cannot be shown to be in accord with justice or fairness.

Now, the concepts, and understanding the concepts of justice and fairness and how they apply to your situation is exactly why representation is essential when dealing with anything in employment and that includes dismissal, disciplinaries, and investigations. Get a representative.

This concept is a cornerstone in employment law and determinations as to the nature of the employers decision making process and the decision itself.

In Wellington Road Transport Union of Workers v Fletcher Construction Company Limited  the Court of Appeal provided that unjust was:

...unfair, without due cause, unreasonable, improper, unwarranted, or arbitrary.

In Telecom South Limited v Post Office Union Incorporated the Court of appeal provides that:

A dismissal is unjustifiable if it is not capable of being shown to be just in all the circumstances.

What is justifiable is considered on the basis of moral justice. There is also a test of the balance of of the interests of both the employer and the employee in these circumstances which must be carefully addressed. Far to may employer's make mistakes in this realm, this leaves workers being subject to unjust processes at an alarmingly high rate in Aotearoa New Zealand.

This case law is now translated into s. 103 A of the Employment Relations Act 2000 which provides:

The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

The Employment Relations Act 2000 also provides that for a dismissal or action to be justifiable the employer must consider:

• whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and

• whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and

• whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and

• whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.

If any of the above is not happening in any employment process or experience you are involved in, you should contact us now. It is likely that you are being subjected to a unfair and unreasonable employment situation.

Recently the Auckland Employment Relations Authority provided in CHANDRA v INVOCARE NEW ZEALAND LIMITED that:

The key principles for establishing if a grievance has been raised pursuant to s 114(2) of the Act have been addressed in various court decisions. They can be summarised as follows:

(a) The personal grievance process is informal and accessible.

(b) Personal grievances can be raised in writing or orally and by a series of communications. There is no particular formula of words to be used.

(c) The communications, in whatever form, must allege a complaint that is in the nature of a personal grievance - the type of personal grievance is not required to be specified nor does the complaint even need to be labelled a personal grievance.

(d) The communications must indicate that the employee wants the employer to respond to the complaint, although the employee does not need to identify its preferred process for dealing with the complaint in the first instance.

(e) The communications must convey the substance of the complaint with sufficient information so that the employer knows what it is that the employee expects it to respond to. The employer must be able to respond by addressing the merits of the complaint with a view to resolving it.

(f) It is insufficient for an employee to make a bland statement that it believes it has a personal grievance, even naming the statutory type, without specifying more.

This provision from the Authority Member Sarah Blick in CHANDRA v INVOCARE NEW ZEALAND LIMITED is well supported by other cases such as:

Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC) at [36]

Board of Trustees of Te Kura Kaupapa Motuhake O Tawhiuau v Edmonds [2008] ERNZ 139

Clark v Nelson Marlborough Institute of Technology (2008) 5 NZELR 628 (EmpC) at [37]

Idea Services Ltd (In Statutory Management) v Barker [2012] NZEmpC 112

Chief Executive of Manukau Institute of Technology v Aleksander Zivaljevic [2019] NZEmpC 132

It applies that employees have likely already raised complaints that are likely personal grievances during the course of employment and that if the complaint is a personal grievance if the employee provided it and the employer can address the merits of the complaint.

This being said, it is really important to get the grievance down in writing where ever possible, and with enough specificity as possible to ensure the grievance can be addressed.

It is also important to ensure that these communications are held safely outside of the workplace and accessible for any matter that arrives at a later time.

So it may be that you have already raised a personal grievance, and now you are considering what your next steps are.