How can you keep your job? How can you protect your interests if you lose it? What employers and employees need to know — part three

When employees must not be dismissed

Business restructuring and redundancies can happen at any time and in any circumstances. In that respect, redundancies resulting from COVID-19 remain subject to the usual rules. Under New Zealand employment law, redundancies must therefore comply with the following two basic requirements:

{ad}

• Employers may dismiss employees only if they have sufficient grounds and follow a fair process. Employees who believe their employer has failed on either count may raise a personal grievance (PG).
• Any discriminatory dismissal is unlawful. Employers cannot dismiss employees on grounds including age, race, ethnicity, sex, sexual orientation, pregnancy or religion.

How to try to keep your job in exceptional times

These are, nevertheless, unusually challenging times. Employees made redundant may struggle to find the new job they want amid such uncertainty, while many employers may feel they have no choice but to make redundancies. The best outcome would be for employers and employees to show mutual understanding and make concessions within the legal framework, reaching a compromise that avoids that final step.

Employers have both a legal responsibility and a moral obligation to make use of all relevant government support to retain staff wherever possible. Employees, too, need to assess the circumstances. Both sides can discuss alternatives in good faith.

• Negotiate with your employer to retain your job while temporarily reducing your income through reduced hours, unpaid leave or similar arrangements;
• Agree to your employer's request, or proactively suggest, that your role and duties be adjusted. For example, if an employer develops a new online business model, could employees take the initiative to learn about online business and move into another role?
• Employees should promptly discuss any difficulties with their employer. However, they cannot receive wages while refusing work assigned by their employer, as this risks dismissal. For example, with the move to Alert Level 2 this Thursday allowing restaurants and cafés to reopen, employees cannot unilaterally refuse to attend work because they fear infection from customers.
• Some professionals may usually have a high opinion of their own prospects, believing that “if this employer does not want me, another will”. In exceptional times, it is important to recognise how difficult finding a new job currently is and maintain communication with your employer. Taking the opportunity to improve relationships with your employer and colleagues could be an unexpected benefit.

 Fixed-term and part-time employees deserve particular attention here. Whether employment is permanent, fixed-term or part-time, the relationship between employer and employee and the rules they should follow are the same. However, the latter two groups face greater risks in the current pandemic-affected circumstances.

 

• Fixed-term employees.

These jobs have a defined contractual term, usually a short one: six months, a year or two years. Fixed-term contracts have genuine reasons, such as seasonal work, a one-off project or covering a permanent employee's leave. They are sometimes also used for specialised roles or those requiring scarce skills. People who can normally find work relatively easily often choose these contracts. However, the current circumstances are exceptional, with employment opportunities falling sharply, so the response must also change. If you are currently on a fixed-term contract, promptly check when it ends and discuss future possibilities with your employer in advance. Does the company still need the position, and can your contract be renewed? If the role is no longer needed, discuss whether you could move into another position and what help your employer is willing to provide.

 

• Part-time employees.

These jobs are common in retail, office administration and secretarial work, and factory production lines, often in businesses heavily affected by the pandemic. When business volumes fall, additional staff are no longer needed to share the workload, so these roles may be the first affected by restructuring or redundancies. To retain your job in these circumstances, speak to the company as soon as possible about moving into other work or temporarily accepting lower pay to help the business through its difficulties.

 

 How employees facing redundancy can secure the best outcome

When redundancy becomes unavoidable, dwelling on self-pity brings no benefit and only harms your physical and mental wellbeing. What employees need to do at this point is negotiate rationally with their employer to secure the best possible outcome.

• Calculating your final pay.

An employee's final payment should include outstanding wages, payment for accrued leave (annual leave and alternative holidays), and any other entitlements specified in the employment agreement. If the agreement provides for redundancy compensation, this must also be paid. Note that redundancy compensation is not a statutory requirement in New Zealand and is not included in every agreement. If you have worked for more than 12 months, the leave payment should include unused leave for the year, whether annual leave or alternative holidays. If you have worked for less than 12 months, your employer should pay 8% of your normal wages as holiday pay.

 

• Unjustified dismissal.

Employers cannot dismiss any employee without justification. If an employer has not followed a fair process, employees have the right to challenge this and raise a personal grievance (PG). If you believe you have been unjustifiably dismissed or that your employer's process was unreasonable, you are strongly advised to contact a lawyer or employment advocate for legal advice. If necessary, they can accompany you to mediation meetings and Employment Court proceedings, or bring a personal claim on your behalf.

 

• Giving notice.

An employer ending an employee's employment must give advance notice for the period specified in the employment agreement. Conversely, an employee who finds a new job must also give their employer notice. If the agreement does not specify a notice period, notice must still be “fair” and “reasonable”. What constitutes fair and reasonable notice depends on several factors, such as the reason for redundancy, the employee's length of service, industry practice and the employee's ability to find alternative paid work. Employers can also ask employees for their views.

Employers should pay employees their normal wages during the notice period. If an employee wishes to leave early, the employer may agree to or decline the request. If both parties agree to an early departure, the employer need pay wages only up to the employee's last day of work.

 

• A written statement from the employer.

Dismissed employees have the right to ask their employer for a written statement setting out the reasons for dismissal. The request can be made within 60 days of dismissal. The employer must respond within 14 working days. Employees may also raise a grievance if the employer fails to do so.

 

• Support from the employer.

There is no legal requirement for employers to provide support. However, where company policy allows, employees are entitled to all relevant support specified in company policies and their employment agreement, such as counselling, CV assistance, interview training and other career advice. Employees can also ask their employer for a reference to help them find a new job.

 

• Keep written records.

Both employees and employers should develop the habit of keeping all written communications, whether emails, letters, WeChat messages or other records, so that everything can be traced. If a dispute or disagreement arises, these can also help establish that you have acted properly.

If a dispute arises, try to resolve it through discussion rather than proceeding to a hearing. Mediation is the better option. Hearings take place through the Employment Court, and the litigation process costs both parties time and effort, so both employers and employees are advised to avoid it. Ideally, resolve the issue directly with the employer or have a lawyer assist with negotiations.

What other help is available to find work?

On 28 April, Social Development Minister Carmel Sepuloni announced a series of initiatives already under way or about to launch to help New Zealanders who have lost their jobs because of the pandemic find new employment.

• Establishing 35 employment centres nationwide, offering telephone and online advice at Alert Level 3 and face-to-face services at Alert Level 2.
• Providing an online tool on the Ministry of Social Development website to match jobseekers with suitable potential employers.
• Providing online employment training courses.
• Launching a “Keep New Zealand Working fast-track service” for benefit applicants who want to return to work as soon as possible.

The following website links also offer practical help with finding another job:

• https://www.careers.govt.nz/tools/cv-builder/

CV Builder is a free online tool that helps you create a CV.

• https://www.careers.govt.nz/plan-your-career/

This webpage helps you plan your future career by identifying your skills and lets you search for courses to develop the skills you need.

• https://www.workandincome.govt.nz/

For further help finding work, you can also contact WINZ. Its website also lists some job vacancies. https://www.workandincome.gov t.nz/eligibility/index.html

See this link for information on benefits you may be eligible for if your working hours have been reduced or you have been made redundant.