How to bring a wrongful dismissal claim against your employer in New Zealand

Introduction

If you can show you have been wrongfully (or "unjustifiably") dismissed, you can bring a personal grievance claim against your employer to the Employment Relations Authority. For information on personal grievances, see How to bring a personal grievance against your employer.

The courts have interpreted unjustified dismissal as including both actual and "constructive" dismissals (see below for constructive dismissals).

When is a dismissal justified?

For a dismissal to be justified it must be both substantively and procedurally fair – that is, there must have been a good reason for the dismissal ("substantive fairness"), and the way in which the dismissal was carried out must have been fair ("procedural fairness"). The employer must have acted fairly and reasonably. The NZ EMPLOYMENT RELATIONS ACT 2000 also requires employers to act in good faith when taking disciplinary action.

There are a variety of substantive reasons that would justify dismissal. Serious misconduct justifies immediate (or "summary") dismissal, without the need for any warnings to be given; examples of serious misconduct include theft, assault, breaching work rules and disobeying direct instructions. Lesser forms of misconduct or poor work performance require warnings to be given before a dismissal will be justified.

Unjustified dismissal on the grounds of procedural unfairness

Frequently claims for unjustified dismissal will arise where a proper procedure has not been followed leading up to the termination, even though there might have been a legitimate reason for the dismissal.

If you are dismissed for poor work performance or misconduct there are procedures that your employer must follow, including a proper investigation of the facts, the opportunity for you to consider and respond to any allegations, and the right to be represented. Any breach of this procedure is likely to make the dismissal unjustified. For this procedure, see How to discipline an employee and How to dismiss an employee.

"Constructive" dismissal

There may also be an unjustified dismissal even though there was formally no dismissal at all - this is known as a "constructive" dismissal. Examples are where:

• an employee is given a choice between resigning or being dismissed, or
• an employer follows a course of conduct with the deliberate and dominant purpose of coercing an employee to resign, or
• there is a breach of duty by the employer leading an employee to resign (such as an unsafe work environment, false accusations of misconduct, a unilateral variation of an employment agreement, or a gross breach of the employer's contractual obligations)

It is unlikely that the Employment Relations Authority (which replaces the Employment Tribunal) will find in your favour if it considers that the employer acted reasonably and with justification or if there has been no breach of duty by the employer.

Termination of fixed-term contracts

The premature termination of a fixed-term employment contract may justify lodging a personal grievance claim based on unjustified dismissal. In this situation the damages will usually be the salary for the remainder of the term of the contract.

The New Zealand Employment website has an additional article on Unjustifiable dismissal.
 

Other New Zealand Employment Law resources

• The New Zealand Government website Employment is an additional useful guide.
   
• The NZ Employment Relations Authority assists you further seek assistance in resolving employment related issues. It is an independent body.
   
• The NZ Employment Court allows you to challenge a decision made by the Employment Relations Authority.
   
• The NZ Human Rights Review Tribunal assists with issues of human rights and privacy at work.
   
• The NZ Employment Relations Authority has a database of previous cases for review.
   
• The NZ Government website Employment has a free tool for creating employment agreements - help yourself.

Cautionary notes

• Whether or not you have been unjustifiably dismissed will depend very much on the circumstances of your particular case. It is therefore vital that you receive legal advice as soon as possible so that the appropriate procedures are followed and the necessary action is taken.
• You have only 90 days from your dismissal to submit a personal grievance to your employer (see How to bring a personal grievance against your employer. You should consult a lawyer before taking this step.