I R Thompson Associates have an excellent reputation for helping employers with issues with employees.  We dont charge outrageous fees and we provide common sense advice.

It should be noted that we work for employers and employees which does give us an advantage in understanding both perspectives. Employers, don't get it wrong and pay, call us first.

Employment Minefield for Employers

Employers under the current legislation need to be extremely careful in dealing with employees. Without doubt an employer will come across problems with employees.

This page can assist employers with general concerns you may have.

However it is strongly recommended that you contact us to check your position. If you fail to warn or dismiss an employee correctly it could potentially cost you thousands of dollars and lots of time and energy.

Employment Law Training for employers

I R Thompson Associates can offer provide tailor training for your company on any employment - related topic. This training is provided by Robert Thompson and Jonny Sanders and can include topics such as;

• Employment Law for Beginners
• The Disciplinary Process
• Avoiding Personal Grievances
• Employment Agreements
• Holidays Act 2003
• Drugs and Alcohol in the Workplace

Misconduct or Serious Misconduct

At some point you will be required to discipline your staff. If so you must be mindful of their employment rights. The basic requirement imposed on an employer is that they must follow the principles of natural justice. The minimal requirements are that the employer has properly investigated the allegation(s), given the employee the opportunity to be heard and then considered any explanation before making any decision.

1. Notice to the worker of the specific allegation of misconduct to which the worker must answer and of the likely consequences if the allegation is established;
2. An opportunity, which must be real as opposed to a nominal one, for the worker to attempt to refute the allegation or to explain or mitigate his or her conduct; and
3. An unbiased consideration of the worker's explanation in the sense that consideration must be free from pre - determination and uninfluenced by irrelevant consideration.

Failure to observe any one of these requirements will generally render the disciplinary action unjustified.

The employee must also be advised that he is entitled to be represented or have a support person. Obviously you would follow this process before commencing a disciplinary meeting. The above is something that must be carried out before considering a warning or dismissing. If you fail to follow this process, the warning or dismissal can be challenged and probably won, even if the employee is guilty of some offence.

If you wish to warn or dismiss a staff member it is always safer to ring or email either Robert or Ian Thompson.

Poorly performing employees. Can the employer do anything.

This is a frustrating issue that can cost time and money. Obviously its important to get the right person first. However if you are faced with a poorly performing employee then a careful approach is required.

An employer may justify a dismissal if they can show a lack of skills, capacity, or personality to perform the job for which the employee was employed. For a dismissal to be justified for poor performance, procedural fairness is critical.

In particular, attention will need to paid to whether warnings were given, whether the problems were explained and discussed with the employee and whether time for improvement was allowed.

If you want to dismiss an employee for poor performance you will need to show that you acted fairly and reasonably. A proper disciplinary action needs to be commenced.

Additionally you need to consider the following checklist.

• That you are dissatisfied with his or her service and the need to achieve to a higher level
• That reasonable time was provided to attain to those standards
• Listened to the employees explanations with an open mind
• Were the targets or performance achievable
• Have you exhausted all steps such as training, counseling and redeployment

Of course procedural fairness is required before any meetings (eg: job in jeopardy, right to representation and notice of reason for meeting).

It is recommended that you ring or email either Robert Thompson or Jonny Sanders to ensure that this process is done correctly.

Abandonment of employment

An employment relationship can end in a variety of ways apart from a dismissal. One of those ways is through the relinquishment of the employment of the employee. Abandonment in the ordinary sense simply means to "give up".

However there are some basic principles to be applied. The employment agreement should have an expressed provision. Also the employer has a general obligation to inquire fairly into the circumstances and to allow the employee an opportunity to be heard on why he may have abandoned his or her employment. In addition to this the employer is under good faith and should attempt to contact the employee before the employee can effectively abandon their employment. We would recommend writing or calling the employee (on their cell phone) to advise them them if they fail to turn up to work they will be deemed to have abandoned their employment. If the employee then turns up disciplinary action should be taken.

If in doubt ring or email either Robert Thompson or Jonny Sanders.

Employee Illness/Incapacity

The illness of an employee can be frustrating and costly to a company.

In some circumstances it can be justifiable for an employer to dismiss an employee for illness, such as if the employees illness is likely to affect their ability to perform their work in the long term.

In Canterbury Clerical Union v Andrew and Bevan [1983], Judge Castle stated:

"It is well established law that an employer is not bound to hold open a job for an employee who is sick or prevented from carrying out his or her duties for an indefinite period".

While this may sound simple, think again. As always, process is particularly important. A prudent employer will insist on recent and clear medical information. This information will enable the employer to ensure that the employee will not be returning or unable to return in a reasonable timeframe. The employee should be notified that the employer is concerned with the length of the absence and proper and fair process should be followed (refer procedural fairness on misconduct or serious misconduct).

This is a difficult area of the law and we recommend that if you have any questions in this regard you should ring or email either Robert Thompson or Jonny Sanders.

Employment Agreements

It is critical to have employment agreements. The Employment Relations Act 2000 and it amendments make it compulsory to have employment agreements. If you fail to have agreements you may be liable to a penalty of up to $10,000.00.  Also verbal agreement create confusion and possible enforcement problems. Employment agreement are now more important because of the 90 day trial period.  These trial periods must be in writing.  If not the employer can not rely on dismissing an employee within 90 days.

I R Thompson Associates can provide employers with employment agreements to suit the employers needs, for a very reasonable price.

90 DAYS TRIAL.

All the duties of good faith apply during 90 Day Trial Periods. That means employees entering into 90 Day Trial Periods can bring a grievance against an employer if they are unjustly treated.

You must get the employee to sign the agreement(which has a 90 day trial period) prior to the employee starting.  So get the employee to pick up the new agreement and return it signed before they start. 

When you decide to dismiss, inform the employee, at the point of dismissal there is no need to set up a meeting to share information, nor a discussion of the issues with a representative.
Because there is a statutory right to dismiss at any time during a 90 Day Trial period.  But we strongly recommend that you phone or email us before you rely on this clause.

It is recommended that you treat 90 Day Trial Period employment in the same way as a probationary period with the exception that a dismissal will not be challengeable. Treatment of the person during the 90 Day Trial Period will be up for challenge.

This information is not a substitute for legal advice and we recommend that you visit or call before acting on material you have read.

The employers rights, the employers obligations and the employers duties will be  challenged. Therefore the employer should be prepared to defend the things that the employer has worked hard to gain through hard work. Employers we are here for you.