Employment law expert to speak at upcoming HRD Employment Law Masterclass
New Zealand presents a unique landscape when it comes to terminating employees. The intricacies of employment law involve stringent regulations and protections that make it imperative for employers to follow strict protocols during the termination process.
“I think there might be some countries in Europe where it is a bit more difficult [to terminate an employee] but it is certainly more difficult here than in Australia,” said Sherridan Cook, partner at Buddle Findlay.
At the upcoming HRD Employment Law Masterclass New Zealand, Cook will discuss key takeaways from the most influential and significant cases over the last 12 months, along with trends in employee compensation rulings, and the significance of tikanga values in today’s employment landscape.
Find out more and register for the HRD Employment Law Masterclass New Zealand
While the Employment Relations Authority outcomes can usually be predicted quite easily, the Employment Court is a more challenging environment, he said.
“In the Employment Court, you can go along thinking that you have a good case but then it goes under the spotlight and every little bit of the employer’s process is examined, and often found to be wanting.”
“Every time these cases go before the court, we tend to get more stringent rules; there’s never a lessening by the courts on what employers have to do,” said Cook.
Three landmark cases
During his talk, Cook will highlight three significant cases that bring to light the complexities of employment termination in New Zealand:
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Steel Ltd v Haddad [2023]: Involving a corporate restructuring process, this case demonstrates the importance of proper consultation with employees. Failing to consult adequately can result in unfavourable judgments, even if there was no malicious intent.
GF v Comptroller of Customs [2023]: This landmark case revolved around the dismissal of an employee who refused vaccination. It emphasised the importance of following a proper process in such situations, especially when dealing with the unique cultural values and customs (tikanga) of Māori employees.
Rock v DJ Investments 2019 Ltd [2023]: Proper usage of 90-day trial periods: The last case, though not a court case, serves as a reminder to employers of the importance of correctly using 90-day trial periods and casual employment agreements, particularly considering the potential return of 90-day trials.
Tikanga values and inclusion
As more and more organisations bring tikanga values into their own policies, procedures, and values to reflect their diversity and inclusion, the application of tikanga values will become a significant aspect of employment law in New Zealand, said Cook.
“I think tikanga is the biggest thing in law at the moment,” he said.
As an example, GF v Comptroller of Customs [2023] is a landmark case in employment law, said Cook, “because it's the first time that the Employment Court has looked at whether tikanga applies in employment law — and found that it did. So, the court’s saying, ‘If you bring tikanga values into your own policies, then you’ve got to live by them.’”
Cook shared three crucial principles for disciplining and terminating employees:
Clearly define allegations: Employers should meticulously define allegations against the employee, ensuring clarity.
Allow sufficient feedback time: Provide employees with ample time to provide their feedback is essential in maintaining fairness in the process.
Communicate intent: Transparency is key. Employers should clearly communicate their feedback on what the employee has to say and allow fair opportunity to respond.