Western Institute of Technology PDF

WESTERN INSTITUTE OF TECHNOLOGY AT TARANAKI
DEPARTMENT OF MAORI ENTERPRISE, BUSINESS
& TECHNOLOGY
BAM6.013 Industrial Relations
NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Semester 1, 2021
Due: 30 June 2021
Contents
1.0 Definition of termination.....................................................................................................3
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

2.0 Definition and explanation different types of dismissal...................................3
3.0 Two types of grounds for dismissal..............................................................................4
4.0 Requirement relating procedural fairness, substantive justification and
adequate notice................................................................................................................................5
5.0 procedure for addressing unsatisfactorily performance..................................7
6.0 Definition of personal grievance....................................................................................8
7.0 Grounds for personal grievance......................................................................................9
9.0 Discrimination............................................................................................................................9
10.0 Personal grievance procedure.....................................................................................10
11.0 Remedies available for employees............................................................................10
12.0 Receiving a personal grievance..................................................................................11
13.0 Internal dispute resolution procedures..................................................................12
14.0 Mediation and authority..................................................................................................13
15.0 difference between ER authority and ER court proceedings.....................13
16.0 identification and documentation to be file when lodging a mediation
request.................................................................................................................................................14
17.0 Progressive Warnings for misconduct....................................................................14
Appendix :A........................................................................................................................................15
Appendix :B........................................................................................................................................17
Cases in law linked to specific areas...................................................................................18
References............................................................................................................................................19
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

Purpose of the training manual
Purpose of this manual is make sure that the owner of Kelly-Blue & Co has
understand the different aspect of ERA 2000 and its implication.
1.0 Definition of termination
Termination refers to ending employee’s employment contract with the
organization. The obligation of good faith is the most important element
which needs to be present in the whole process of termination.
Situation where termination can take place;
- For cause: perform misconduct or incompetence or incapacity.
- For redundancy: the role no longer needed, insolvency of
organization, closure or restructuring of workplace.
- On notice: as per employment agreement or on reasonable notice
under common law (Rudman, 2021).
2.0 Definition and explanation different types of dismissal
- Justifiable dismissal is a situation when employer followed all the legal
procedures to dismiss an employee from the organisation. When dismissing
an employee, the employer has to follow Employment Relation Act 2000 to
act in good faith and also act as a fair and reasonable employer.
The employer must have a good or justified reason and procedural fairness
present in order to dismiss an employee. The court will test the justification
under section 103A of ERA 2000. Depending on the circumstances the
employer has to act accordingly to carry out fairness and justified reason.
This is why, it is very important for the employer to know all the information
about their obligation under the act (Rwardbarrister, 2020).
- Constructive dismissal is when employee is being influenced or
pressurized by the employer to resign from the job, it is called constructive
dismissal. This is a situation where, employee feels that resignation from the
job is only the option they have left (Rudman, 2021).
Constructive dismissal took place where;
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

- The employee has given choice between either resignations or
dismissed.
- Employer treated the employee in an unfair way continuously so the
employee resigns from the work.
- Breach of duty by an employer which leads to staff resignation
(Rudman, 2021).
3.0 Two types of grounds for dismissal
Ground for dismissal means, in what basis or situation the employer may
consider to dismiss the employee. Dismissal can occur on the basis of
performance or conduction of the employee (Rudman, 2021).
1. Serious misconduct: When the employee involved in some sort of
action that can leads to serious damage of the relationship of trust and
confidence with the employer, called serious misconduct
(Employment.govt, n.d.).This could be;
- Performing violent behavior.
- Bullying.
- Involve in physical or mental harassment
- Theft or fraud.
- Putting the health and safety of own and others in danger.
- Use of illegal drugs at work.
- Dishonesty (Employment.govt, n.d.).
The serious misconduct leads to instant dismissal of the employee without
any notice but there is always remain a question regarding justification of
the situation and playing good faith obligations. A strong warning can be
more appropriate action to take by the employer for the first offence instead
of instant dismissal (Rudman, 2021).
2. Breach of good faith: According to Employment Relation Act (ERA)
2000, s3 (a) (I), employment relationships must be built not only on the
implied mutual obligations of trust and confidence, but also on a
legislative requirement for good faith behavior (Legislation.govt, 2004).
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

Loss of trust and confidence is not enough for the employer to jump
into the conclusion of dismissal but also the employer has to identify
which course of action of the employee is contradicting with deities
and obligation of employment contact (Rudman, 2021).
4.0 Requirement relating procedural fairness, substantive
justification and adequate notice.
Procedural fairness means implication a fair process when making any
decision by the employer. The requirements of procedural fairness as per
ERA 2000 s103A (3) are;
- Proper investigation of whole concerns and collect the resources for
the decision.
- Communicate with employee regarding the concerns. This can be done
by explain the exact scenario with relevant reference or information.
Also, the information about the consequences and possible disciplinary
course of action.
- Allow employee to explain his side of story and perform genuine
consideration of employee’s explanation (Legislation.govt, 2011).
The employer also should consider other components like;
- Unbiased decision maker.
- Inform employee regarding bringing support person or union
representative in the disciplinary meeting.
- Consider similar historical situation/event and consequences, and treat
employee impartially.
- Assess all possible options before making decision.
In conclusion, the good faith practice is most vital element and should be
carried out by the employer and employee during the whole process
(Employment.govt, n.d.).
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

Substantive justification refers to determining the good reason behind
the decision of the employer. When employer decided to dismiss an
employee he/she has to come up with a valid and fair reason. The
requirements of good reason are;
- Employer feels that the valid reason has been identified to carry out
the process
- Good and fair reason lead to the particular decision.
Adequate notice refers to giving notice to the employer as per contract or
reasonable time period. The employee must tell the employer in advance if
they are going to end the contract so that the employer can find the
replacement.
Notice period is the amount of time between the day employee give notice to
the employer to till the date actually employment relationships ends. This is
usually the same for employers and employees. Notice period usually
specified in the employment agreement. Notice is required to be in writing.
If there is no noticed period specified in the employment agreement the
employee must have to give a reasonable notice period. This notice period
can be set up according to length of service, type of employment and
depending on how long it will going to take to replace the position
(Employment.govt, n.d.).
5.0 procedure for addressing unsatisfactorily performance.
Informal management (appendix A)
Step 1 – it is very important to identify the performance problem and the
root cause of the problem.
Step 2 – Assessing and analyzing depth of the problem, the time period of
its existence and the gap between expected out come and actual outcome
that been created because of the problem.
Step 3 - Meet with the employee informally to discuss the issue. The
employer has to arrange a friendly and non-threating informal meeting with
the employee. It is very important to make sure the employee has clearly
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

understand what is the issue, why this considered an issue, how this impact
the organisation and why there is a concern.
The employer has to remember some key points when discussing with
employee which are;
- Talking about the issue and not the individual
- explore the root cause why there is an issue
- clarify details
- Stay relaxed and encouraging
- Summaries to check your understanding of the situation.
Step 4 – it is very crucial to come up a joint solution where employer and
employee has contributed equally. When the employee will engage with the
developing the solution with employer he/she will put the maximum efforts
for the implication.
Step 5 – The employer should closely supervise the employee and monitor
performance. Feedback and follow needs to be given for boost up the
progression.
Formal management (Appendix B)
Step 1: Develop a performance improvement plan
- Set up a meeting with the employee
- Finalize Performance improvement plan
- Over the Review Period
- Regular meetings
- Clear, honest feedback
- Documentation
Step 2: Invitation to First Formal Review Meeting
- The letter inviting the employee to the review meeting should
- Formal Review Meeting
- Confirmation of Outcome
- The decision letter which is a warning letter should
Step 3: Performance improvement plan 2
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

- Expected outcomes of formal review
- Progression overview
Step 4: Performance improvement Plan 3
- The letter setting up the meeting should
- At the formal meeting
- If performance problem still exist then employer should carefully
consider the outcome
- Termination might be last option
- Primary decision meeting
- Meeting final decision
- Confirmation of decision to terminate in writing
- Common pitfalls
6.0 Definition of personal grievance.
Personal grievance is a situation where the employee complaint against
the current or former employer. According to ERA 2000 s111 employee can
raise persona grievance under the basis of “discrimination, sexual
harassment, adverse treatment in employment of people affected by family
violence, racial harassment, duress, and adverse conduct for prohibited
health and safety reason have in any employment agreement the meanings
given to those terms by sections 103, 104, 105, 106, 107, 108, 108A, 109,
110, and 110A unless the employment agreement gives an extended
meaning to the term” (Legislation.govt, 2000).
7.0 Grounds for personal grievance
An employee can raise personal grievance against the current or former
employer under section 103(1) of ERA 2000.
Grounds:
 If the dismissal or punishment has not been justified employee can claim.
 Employee get any sort of disadvantages for unjustified action by the
employer.
 Any conditions from employment contract has been breached employee
can act against it.
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

 Employee found that employer has not treating him/her fairly or equally
as per employment contract or faced discrimination, so he/she can claim
that.
 Employee has been harassed sexually in the employment.
 Any sort of racial harassment, such as making offensive comments on
their religion, personal life or gender will wound offensive and can be
claimed by the employee.
 Employer failed to comply part 6A of ERA 2000 relating with restructuring
situation.
 If the employer failed to offer the requirements of providing protection to
specified categories of employees.
 If employee gets disadvantaged from the employee’s employment
contract not comply with the act requirement regarding agreed hour of
work, availability provisions, shift cancellation or secondary employment.
 If the employer has treat employee adversely because he/she refused to
do certain work or over time or fail to give notice for shift cancellation can
be claimed personal grievance.
 If the employer has been in the relation of adverse conduct for prohibited
health and safety reason, or breach of s92 of the health and safety at
work 2015 employee can claim (Legislation.govt, 2000).
9.0 Discrimination
Discrimination means treating anyone unfairly or unequally than another
person in similar situation. Discrimination can happen based on race, place
of origin, color, ancestry, disability, religious beliefs, gender, gender identity,
gender expression, marital status, age, physical, mental disability, family
status, source of income, and sexual orientation.
Discrimination is when the employer;
- Does not give employee same treatment and terms of employment.
- Treating one differently for same mistake which also done by other
staff.
- Forcing employee to resign by making unfavorable condition
(employment.govt, n.d.).
10.0 Personal grievance procedure
ERA 2000 s114 Raising personal grievance
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

- If employee wants to raise personal grievance (PG) the he /she has to
raise it within 90 days from the day PG occurred or came to notice of
the employee.
- The employee has to let the employer know that he/she alleges a PG
the need to be address to the employer.
- If employer does not consent to the PG being raised, then after
expiration of 90 days the employee can apply to the authority for leave
to raise the personal grievance after the expiration of that period.
- The authority may grant leave accordingly after letting the employer
know about the PG. But only if the authority is satisfied that they delay
in raising the PG is reasonable.
- The Authority must direct the employer and employee to use
mediation to seek to mutually resolve the grievance.
- There will be not action may take by the Authority or the court
regarding the PG after 3 years of the date when PG was raised
-
11.0 Remedies available for employees
According to ERA 2000 s (123) (1) Remedies
- Employee can get back his same position in the organisation or any equal
position in the organisation.
- The employee may get whole amount or part of the wages or other money
lost by the employee because of grievance.
- The employer has to pay the compensation to the employee including
compensation for the humiliation, loss of dignity and injury to the feelings of
employee. Also the loss of benefit, it may or may not be monetary, which the
employee were expecting to get if the grievance had not arisen.
- The authority or the court may consider the employer to pay by instalment
basis but only if the financial condition requires that.
- According to s108(1)(a) found guilty of the harassing behaviour or of the
adverse treatment on that ground by the authority or the court, which action
may include the transfer of that person, the taking of disciplinary action
against that person, or the taking of rehabilitative action in respect of that
person.
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

- Other necessary steps need to be taken to stop further harassment or
adverse treatment on that ground of the concerned or any other employee.
12.0 Receiving a personal grievance
Firstly, the employer should check the relevant applicable employment law,
agreement, work policies to understand the employer’s obligation. If the
employer is not sure about all these stuffs he /she can seek advice from
experts.
Secondly, the employer has prevent the cause of the grievance. For example
if the grievance brought under safety concern, the employer should consider,
what is required to address the risk to safety while matter is being
investigated. In order to prevent harassment, bullying, sexual harassment
and discrimination the employer may offer the employee any alternative
option to avoid harm.
The employer also need to consider whether or not it is necessary to
suspend the other staff who were involve with cause that that particular
employee raise personal grievance.
Thirdly, before you suspend any staff, the employer should make sure that
he has substantive justification and also follow a fair process before
suspending them. Suspension would typically be on full pay.
Fourthly, the employer has to investigate the allegations on which basis the
grievance has raised. It is including checking records, documents and
footage; interviewing witnesses and victims; getting advice on your
obligations; and so on. If the employer has the resources available, he can
also hire an external independent investigator to complete these steps.
Finally, if there is no other person involved employer should make a decision
about whether the grievance is made out, or not. If not, he/she should let
the affected employee know your decision. If the employee accepts your
decision, the matter will be at an end. If not, then you will have an
employment dispute on employer’s hands.
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

13.0 Internal dispute resolution procedures
Setup a meeting with the person involved in the dispute. Employer has to
consider below things;
 Make sure the person knows that he/she can bring a support person or
union representative.
 Employer can bring his own lawyer or industry association
representative.
 Choose a suitable time for the meeting when there will be no rushing
for other work and prepare beforehand.
 The location should be classified and privacy needs to be protected.
 Take detailed notes of everything that’s discussed, and share them
afterwards with all parties.
During the meeting:
 Be clear about the facts — make sure the problem isn’t based on an
assumption or a misunderstanding.
 Talk to each other — you’re both responsible for this.
 Discuss the problem in details so that everyone understands exact
situation and how the situation has arisen.
 Consider whether you need assistance to solve the issue.
 If still problem is unsolved then next step is to seek mediation.
14.0 Mediation and authority
Mediation service is when an independent person call a mediator who helps
the employee and employer to resolve employment relationship issues in a
semi-formal and confidential environment (Employment.govt, 2018).
ERA 2000 s147 gives mediator authority to;
- Determining the appropriate service for particular case.
- Deciding the procedures.
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

- Mediator will draw final decision if the matter is not resolved with the
given time.
- Helping the parties to solve the matter early stage, including
discussing the problem with party without representative of that party
being present.
- Receive any documents, information, statement or other material
whether or not admissible in judicial proceedings (Rudman, 2021).
-
15.0 difference between ER authority and ER court proceedings.
ER authority deals with resolving employment relationship problems. When
employer and employee has a conflict of interest and mediation did go well
then ER authority can take charge to resolve the matter.
ER court proceedings took place when anyone unhappy with the written
decision of ER authority. One have right to challenge decision of ER
authority. Besides sometime ER authority refer directly some cases to ER
court without being investigated.
16.0 identification and documentation to be file when lodging a
mediation request.
 Presenting general information regarding rights and obligation of
employment.
 Information regarding the services available for the people, unions and
staffs who has employment relationship problems.
 Assisting smooth conduct of employment relationships in other ways.
 Assisting with the prompt and effective resolution of employment
relationship
17.0 Progressive Warnings for misconduct
Warning means making aware. Warning is very useful tool to manage
employee’s performance or taking disciplinary action. It is recommended
that all warnings be recorded in writing so that there are no
misunderstandings.
The purpose of progressive warning system is to maintain a positive and
work friendly environment within the organization (shrm, n.d.).
There is three steps of progressive warning system, which are;
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

Step 1: Counseling and verbal warning
Step 2: Written warning
Step 3: Suspension and final written warning
Step 4: Recommendation for termination of employment
Appendix :A
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

Appendix :B
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
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Student ID 2021001189

Cases in law linked to specific areas
Q1 - Aoraki Corp Ltd v McGavin (1998) 5 NZELC 95,767;[1998] 3 NZLR 276;
[1998]
Q2 Hayashi v Sky City Management Ltd [2018] NZEmpC 14
Q3 – Holder v Dee Gee Ho ldings Ltd t/a Cheapkates Wellington[2020] nzera
155
Q4 – Faapito v Chief Executiveof Deptof Corrections[2012]NZEmpC 206
Q5 – Yan v C of IR [2015] NZEmpC 36
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189

References
Employment.govt. (2018, 05 08). Mediation. Retrieved from Employment.govt:
https://www.employment.govt.nz/resolving-problems/steps-to-resolve/mediation/
employment.govt. (n.d.). Discrimination. Retrieved from Employment.govt:
https://www.employment.govt.nz/resolving-problems/types-of-problems/bullying-harassment-
and-discrimination/discrimination/#scrollto-discrimination-relating-to-employment
Employment.govt. (n.d.). Giving notice. Retrieved from Employment.govt:
https://www.employment.govt.nz/ending-employment/giving-notice/?
gclid=CjwKCAjwieuGBhAsEiwA1Ly_naSolM2zS8O6lHz9XcKwgJUN6DFHQfZVjWgZ_Bx5P1afRfljOp
DiqxoChOgQAvD_BwE
Employment.govt. (n.d.). Misconduct and serious misconduct. Retrieved from Employment.govt:
https://www.employment.govt.nz/resolving-problems/types-of-problems/misconduct-and-
serious-misconduct/
Legislation.govt. (2000). Employement relation Act 2000. Retrieved from Legislation.govt:
https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM60322.html?
search=sw_096be8ed81adb520_103_25_se&p=1&sr=3
Legislation.govt. (2000). Employment Relations Act 2000. Retrieved from Legislation.govt:
https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM60344.html?
search=sw_096be8ed81adb520_103_25_se&p=1
Rudman, R. (2021). New Zealand Employment Law Guide. CCH New Zealand Limited.
Rwardbarrister. (2020, 12 09). Employment Law – When is a Dismissal Justified? Retrieved from
Rwardbarrister: https://rwardbarrister.co.nz/employment-law-when-is-a-dismissal-justified/
shrm. (n.d.). Progressive Discipline Policy - Single Disciplinary Process. Retrieved from shrm:
https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/
progressivedisciplinepolicy.aspx
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NZDB6.635 Employment Relations
Assessment 3 – Training Manual
Last Updated 01/07/2021
Student ID 2021001189