However, these sectors are known for their high turnover rates, and part-time and seasonal employment. With this, you may be more likely to face the risk of unfair dismissal, which can add stress and uncertainty to your work life.
Employment laws offer significant protection against unfair dismissal, ensuring that all employees are treated fairly and respectfully in the workplace. In this article, we’ll explore the rights of hospitality and retail workers against unfair dismissal, the steps you can take if you believe you’ve been unfairly dismissed, and the key legal protections that safeguard your rights.
What is Unfair Dismissal?
Unfair dismissal occurs when an employer terminates an employee’s employment without a valid reason, or without following a fair process.
Employees are protected by the Employment Relations Act 2000, which outlines the grounds for fair dismissal, as well as the process that employers must follow when terminating employment. While employers have the right to dismiss an employee for valid reasons, such as poor performance, misconduct, or redundancy, the dismissal must be justifiable and carried out according to the correct procedures.
Grounds for Fair Dismissal
Employers must have a valid and justifiable reason for dismissing an employee. The Employment Relations Act 2000 specifies three main grounds for dismissal:
Misconduct: This includes serious behaviour issues such as theft, harassment, violence, or breaches of workplace policies.
Poor Performance: If an employee consistently fails to meet job expectations or performs their duties inadequately, they may be dismissed after the employer has provided a reasonable opportunity to improve.
Redundancy: In the case of job restructuring, where the employer no longer requires the position, employees may be dismissed due to redundancy. However, the employer must follow the correct process for redundancy, including consultation and consideration of alternative employment within the company.
While these are valid reasons for dismissal, the process of dismissal is just as important. Employers must follow a fair and reasonable process, including giving the employee a chance to respond to the allegations or concerns raised.
Key Rights for Hospitality and Retail Workers
1. Right to a Written Employment Agreement
You are entitled to a written employment agreement.
This agreement should outline the terms of employment, including job responsibilities, pay, hours, and conditions for dismissal. A clear contract helps both you and your employer understand the expectations and processes involved, making it easier to prevent misunderstandings that may lead to disputes.
2. Right to Receive Notice
If you are being dismissed from your job, you have the right to receive reasonable notice. The length of notice will depend on the terms in your employment agreement. If your contract doesn’t specify notice periods, Employment New Zealand states that 2 to 4 weeks is fair and reasonable.
If your employer dismisses you without providing the correct notice or without a justifiable reason, this may be considered unfair dismissal.
3. Right to an Opportunity to Defend Yourself
In cases of dismissal due to misconduct or poor performance, employers must follow a process of procedural fairness. This means you must be given an opportunity to respond to any allegations made against you.
3.1 Misconduct
If an employer is considering dismissing you for misconduct, the employer must carry out a thorough investigation into the situation and give you an opportunity to explain your side of the story. This applies to situations like theft, violence, or poor behaviour towards colleagues or customers.
3.2 Poor Performance
Employers cannot dismiss you for poor performance without first offering the opportunity for improvement. This usually involves giving feedback, providing training, and setting reasonable performance expectations. You must be given a fair chance to improve before facing dismissal.
4. Right to Seek Compensation for Unfair Dismissal
If you believe that your dismissal was unfair, you have the right to file a personal grievance with your employer. The grievance process must be initiated within 90 days of your dismissal, so it’s crucial to act quickly if you feel your rights have been violated.
If the grievance is upheld, you may be entitled to compensation, which can include:
Reinstatement: If it’s deemed that the dismissal was unjustified, you may be reinstated to your previous position.
Compensation: If reinstatement is not possible, you may be entitled to compensation for lost wages, emotional distress, and the impact of the unfair dismissal.
5. Right to Protection Against Discrimination
You are protected against discrimination in the workplace, including being unfairly dismissed based on race, gender, sexual orientation, disability, or other protected characteristics. If you feel that you have been dismissed for discriminatory reasons, you can file a grievance for discrimination and unfair dismissal under the Human Rights Act 1993 and the Employment Relations Act 2000.
Steps to take if you’ve been Unfairly Dismissed
If you believe you’ve been unfairly dismissed in a hospitality or retail job, here are the steps you should take:
Check Your Employment Agreement – Review your written employment agreement to see what it says about dismissal, notice periods, and performance expectations.
Talk to Your Employer – If you feel comfortable doing so, have a conversation with your employer or manager about the dismissal. It’s possible that the issue can be resolved informally.
Seek Advice – If you believe your dismissal was unjustified, it’s important to get advice from an employment relations specialist. They can help you understand your rights and guide you through the grievance process.
File a Personal Grievance – If informal discussions don’t resolve the issue, you can file a personal grievance with your employer. This must be done within 90 days of the dismissal. You can file a grievance with the Employment Relations Authority (ERA) if you can’t resolve the issue directly with your employer.
Attend Mediation – Before escalating to legal proceedings, you may be required to attend mediation to resolve the dispute. You could also initiate this for free through Employment New Zealand. Mediation is a process where an independent mediator helps both parties reach a mutually agreeable solution.
Take Further Action – If mediation is unable to reach a resolution, your case can be escalated to the ERA or the Employment Court for further proceedings.
Conclusion
Hospitality and retail workers are entitled to fair treatment when it comes to dismissal, just like any other employee.
If you believe you’ve been unfairly dismissed, it’s important to act quickly and seek legal advice to ensure your rights are protected. By understanding your entitlements and following the correct procedures, you can ensure that your workplace is fair and just. If you face an unfair dismissal, remember that you have legal recourse, and the law is on your side!
Mahi Law can Help!
Our expert team will help you understand your employment rights, and pursue resolution (including compensation) through various channels, such as: Without prejudice negotiations, mediation, the Employment Relations Authority, or Employment Court if required.
We also work on a no-win, no-fee basis – if we win your case, your employer covers the costs.
Get in touch for a free consultation! You can fill out this form – or contact us at [email protected], or 027 425 2231.
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