Post by michaelquigg on Sept 22, 2006 17:14:10 GMT 12
Tips on Employment Law for Sporting Bodies #1
Michael Quigg and Tim Sissons - Quigg Partners
Employment almost invariably starts with the best of intentions. However, things can and do go wrong in employment relationships. And when things go wrong, they can end up involving a personal grievance claim, where an employee claims that they have been treated unfairly or unfairly dismissed. Such claims are generally resolved through New Zealand’s three major employment law bodies:
A good awareness of the basics of employment law and specialist advice when things get difficult can help employers to avoid ending up facing legal claims and to avoid or limit liability where a legal battle cannot be avoided.
When an employer becomes involved in an employment dispute, if it ends up coming before the Employment Relations Authority or Employment Court for resolution, there will generally be two primary questions:
1) Were the employer’s actions substantively justified?
(for example was the employer entitled to dismiss the employee or to take disciplinary action?)
and
2) Were the employer’s actions procedurally fair?
Assessment of both will depend on whether the employer’s actions “were what a fair and reasonable employer would have done in all the circumstances”.
If an employer can show that both on questions of substance and procedure they acted as a fair and reasonable employer would have, then the employee involved will have no valid personal grievance.
If an employer falls down on one or both questions, they may be ordered to either reinstate the employee to their previous position (if they have been dismissed) or to pay damages.
Most disputes that are lost by employers are the result of findings that the employer acted in a procedurally unfair manner.
Accordingly, the following are a few tips to encourage procedural fairness, and to help employers to comply with their duty to act towards employees in good faith. However, these tips are to be taken as a general guide only and cannot be a substitute for specialist advice.
Procedural Fairness
In misconduct situations, there are four basic elements of procedural fairness:
Warning
Investigation
Opportunity to be heard
Deliberation
The exact requirements of procedural fairness will vary from case to case. However, the requirements are broadly similar whether in disciplinary contexts or, for instance, in relation to redundancy or poor performance. The focus is generally on the provision of information to the affected employee, and the consideration of any responses received.
Michael Quigg and Tim Sissons
Quigg Partners
www.quiggpartners.com
Michael Quigg and Tim Sissons - Quigg Partners
Employment almost invariably starts with the best of intentions. However, things can and do go wrong in employment relationships. And when things go wrong, they can end up involving a personal grievance claim, where an employee claims that they have been treated unfairly or unfairly dismissed. Such claims are generally resolved through New Zealand’s three major employment law bodies:
- the Mediation Service (a free service where parties can meet to discuss and hopefully resolve disputes);
- the Employment Relations Authority (a semi-formal body to investigate and rule on disputes)
- and the Employment Court. (a more formal court which hears appeals from the Authority).
A good awareness of the basics of employment law and specialist advice when things get difficult can help employers to avoid ending up facing legal claims and to avoid or limit liability where a legal battle cannot be avoided.
When an employer becomes involved in an employment dispute, if it ends up coming before the Employment Relations Authority or Employment Court for resolution, there will generally be two primary questions:
1) Were the employer’s actions substantively justified?
(for example was the employer entitled to dismiss the employee or to take disciplinary action?)
and
2) Were the employer’s actions procedurally fair?
Assessment of both will depend on whether the employer’s actions “were what a fair and reasonable employer would have done in all the circumstances”.
If an employer can show that both on questions of substance and procedure they acted as a fair and reasonable employer would have, then the employee involved will have no valid personal grievance.
If an employer falls down on one or both questions, they may be ordered to either reinstate the employee to their previous position (if they have been dismissed) or to pay damages.
Most disputes that are lost by employers are the result of findings that the employer acted in a procedurally unfair manner.
Accordingly, the following are a few tips to encourage procedural fairness, and to help employers to comply with their duty to act towards employees in good faith. However, these tips are to be taken as a general guide only and cannot be a substitute for specialist advice.
Procedural Fairness
In misconduct situations, there are four basic elements of procedural fairness:
Warning
- Employers should give the employee details of allegations
- Employers should advise the employee of a disciplinary investigation/meeting and the possible outcomes
Investigation
- Employers should conduct a full and fair investigation into the allegations
Opportunity to be heard
- Employers should allow the employee or employee’s representative to speak to the allegations and provide any explanation or clarification
Deliberation
- Employers should be open-minded in making any decision
- Employers should avoid any appearance of pre-determination
The exact requirements of procedural fairness will vary from case to case. However, the requirements are broadly similar whether in disciplinary contexts or, for instance, in relation to redundancy or poor performance. The focus is generally on the provision of information to the affected employee, and the consideration of any responses received.
Michael Quigg and Tim Sissons
Quigg Partners
www.quiggpartners.com