Unjustified dismissal (often referred to as unfair dismissal) claims are the most common type of personal grievances lodged in New Zealand. Employees in New Zealand have the right to raise a personal grievance if they believe their dismissal was unfair or without proper cause.
What Constitutes an Unjustified Dismissal?
An unjustified dismissal occurs when an employer terminates an employee’s employment without a valid reason or fails to follow a fair process. To claim unjustified dismissal, an employee must demonstrate in writing that they were dismissed and that either the employer lacked a legitimate reason for the dismissal and or the dismissal process was procedurally unfair.
Importantly, even if an employer has a valid reason for dismissing an employee (such as due to the employee committing serious misconduct or if they have been made redundant), the dismissal may still be held to be unjustified if the employer fails to follow a reasonable process.
Determining Procedural Fairness
The fairness of a dismissal is assessed based on the specific circumstances of the case. While employers are not required to execute the process perfectly, significant procedural errors may render the dismissal unfair. Minor mistakes, however, may not necessarily invalidate the process.
The relevant question is whether a reasonable employer would have acted in the same manner under the circumstances. Relevant considerations might include, whether the concerns raised by the employer clearly and effectively communicated to the employee; and whether the employer carried out a proper investigation into the claims, and whether the employer genuinely and objectively evaluated the employee’s response before deciding to terminate the employee.
Justified vs Unjustified Dismissal
See below some simplified examples of what may and may not constitute unjustified dismissal. Note, in practice, each situation would need to be assessed on its own merits and with a range of considerations taken into account to determine whether there had in fact been an unjustified dismissal.
| Circumstance | Justified Dismissal | Unjustified Dismissal |
| Serious Misconduct | Employer has a legitimate, serious reason (e.g., gross misconduct) and follows a fair process including investigation and opportunity to respond. | Employee is not given the chance to respond; employer fails to investigate properly or acts prematurely. |
| Performance Issues | Expectations are clearly communicated; adequate training, support, and feedback provided; formal warnings issued; reasonable opportunity to improve. | Employee dismissed without warnings or support; expectations unclear; no opportunity to improve. |
| Redundancy | Redundancy based on genuine business needs; fair and transparent consultation process . | Redundancy used as a pretext; no consultation; unfair selection criteria. |
| Discrimination | Decision based solely on legitimate business reasons. | Dismissal based on prohibited grounds such as age, gender, race, religion, or disability. |
Requesting Reasons for Dismissal
An employee who has been dismissed can ask their employer for a written statement setting out the reasons for the dismissal. The request must be made within 60 days after the employee becomes aware of the dismissal, and the employer must provide the statement within 14 days of receiving the request.
This 60-day period is separate from the time limit for raising a personal grievance for unjustified dismissal. In most cases, an employee has 90 days to raise a personal grievance, so employees should not delay taking advice simply because they are waiting for the employer’s written reasons.
If Unsure, Seek Legal Advice
Unjustified dismissal claims are complex and require consideration of both the reasons for dismissal and the process followed. Employees who believe they have been unfairly dismissed should seek legal advice promptly to understand their rights and options.
Employers, should ensure they follow fair and reasonable procedures to mitigate the risk of grievances and legal disputes and seek legal advice if they have received a grievance from an ex-employee.
Get in Touch
For any employment law inquiries contact Blackwood Montagna for expert guidance and support.
This article is intended as a general overview and discussion of the subject dealt with and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. We will accept no responsibility for any actions taken or not taken on the basis of this article.
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