References
▷ The Employment Relations (Triangular Employment) Amendment Act 2020 (Act No. 36 of 2020) came into force on 27 June 2020. It inserted Part 6B into the Employment Relations Act 2000, extending the ability of employees in triangular employment relationships (e.g. labour hire / temporary agency workers) to raise personal grievances, including claims of unjustified dismissal, against both the agency and the host organisation in certain circumstances.
Employment Relations Act 2000 [ERA], Act No. 24 of 2000, dated 19 August 2000, as amended by the Employment Relations (Triangular Employment) Amendment Act 2020 (Act No. 36 of 2020).
Date:
1 Jan 1970;
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Human Rights Act 1993, Act No. 82 of 1993, dated 10 August 1993, consolidated version as at 26 November 2018.
Date:
1 Jan 1970;
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Parental Leave and Employment Protection Act 1987, Act No. 129 of 1987, dated 10 July 1987, consolidated version as at 1st July 2018.
Date:
1 Jan 1970;
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Employment Relations (Triangular Employment) Amendment Act 2020, Act No. 36 of 2020.
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Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: actors/artistic sector workers
▶ Employment Relations Act (ERA)
→ Under section 6(1) ERA: "Employee -
(a) means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and
(b) includes -
(i) a homeworker; or
(ii) a person intending to work; but
(c) excludes a volunteer who
(i) does not expect to be rewarded for work to be performed as a volunteer; and
(ii) receives no reward for work performed as a volunteer; and
(d) excludes, in relation to a film production, any of the following persons:
(i) a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer:
(ii) a person engaged in film production work in any other capacity.
(1A) However, subsection (1)(d) does not apply if the person is a party to, or covered by, a written employment agreement that provides that the person is an employee".
▷ Note I: The ERA applies in relation to the Public Service (§ 67 of the State Sector Act 1988, No. 20 of 1988 as amended up to Act No. 23 of 2017).
▷ Note II: Following the Employment Relations (Triangular Employment) Amendment Act 2020 (effective 27 June 2020), employees in triangular employment relationships may raise personal grievances, including claims of unjustified dismissal, against both the agency and the host organisation in certain circumstances (see Part 6B of the ERA).
FTC regulated: Yes
▷ Fixed-term employment contracts are regulated under section 66 of ERA.
Valid reasons for FTC use: objective and material reasons
▶ Employment Relations Act (ERA)
→ Section 66 ERA on fixed-term employment indicates that:
(1) An employee and an employer may agree that the employment of the employee will end:
(a) at the close of a specified date or period; or
(b) on the occurrence of a specified event; or
(c) at the conclusion of a specified project.
(2) Before an employee and employer agree that the employment of the employee will end in a way specified in subsection (1), the employer must—
(a) have genuine reasons based on reasonable grounds for specifying that the employment of the employee is to end in that way; and
(b) advise the employee of when or how his or her employment will end, and the reasons for his or her employment ending in that way.
(3) ERA provides that the following reasons are not genuine reasons:
(a) to exclude or limit the rights of the employee under the ERA
(b) to establish the suitability of the employee for permanent employment:
(c) to exclude or limit the rights of an employee under the Holidays Act 2003. (...).
Maximum number of successive FTCs: no limitation
▷ There is no statutory limit on the number of successive fixed-term contracts, provided the employer continues to have genuine reasons based on reasonable grounds for each fixed-term agreement. (§ 66(2)(a) ERA).
Maximum cumulative duration of successive FTCs: no limitation
▷ No statutory limitations. However, the employer must have genuine reasons based on reasonable grounds for resorting to a fixed-term (§ 66(2)(a) ERA).
Maximum probationary (trial) period (in months): 3 month(s)
▷ Note on terminology: The Law distinguishes between probationary and trial period. The term used in the Act is “Trial Period”. A “probationary period" also exists, but it is different from trial periods and doesn’t provide any duration requirements (§ 67).
▶ Employment Relations Act (ERA)
▷ Probationary arrangements
→ Section 67 ERA indicates that:
(1)Where the parties to an employment agreement agree as part of the agreement that an employee will serve a period of probation after the commencement of the employment,—
(a) the fact of the probation period must be specified in writing in the employment agreement; and
(b) neither the fact that the probation period is specified, nor what is specified in respect of it, affects the application of the law relating to unjustifiable dismissal to a situation where the employee is dismissed in reliance on that agreement during or at the end of the probation period.
(2) Failure to comply with subsection (1)(a) does not affect the validity of the employment agreement between the parties.
(3) However, if the employer does not comply with subsection (1)(a), the employer may not rely on any term agreed under subsection (1) that the employee serve a period of probation if the employee elects, at any time, to treat that term as ineffective.
▷ Trial period
→ Section 67A ERA - An employment agreement may contain a provision for a trial period for 90 days or less:
(1) An employment agreement containing a trial provision, as defined in subsection (2), may be entered into by an employee, as defined in subsection (3), and an employer.
(2) Trial provision means a written provision in an employment agreement that states, or is to the effect, that—
(a) for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period; and
(b) during that period the employer may dismiss the employee; and
(c) if the employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.
(3) Employee means an employee who has not been previously employed by the employer.
(5) To avoid doubt, a trial provision may be included in an employment agreement under section 61(1)(a), but subject to section 61(1)(b).
▷ See also: Section 67B ERA - Effect of trial provision under section 67A.
▷ Important Note: The 90-day trial periods (under which an employee is not entitled to bring a personal grievance in respect of their dismissal) are only available to small-to-medium-sized employers.
Valid grounds (justified dismissal):
Prohibited grounds: marital status, pregnancy, maternity leave, family responsibilities, filing a complaint against the employer, race, colour, sex, sexual orientation, religion, political opinion, nationality/national origin, age, trade union membership and activities, disability, parental leave, participation in a lawful strike, raising occupational health and security concerns, ethnic origin
Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave, workers with family responsibilities
Notification to the worker to be dismissed:
▷ The ERA does not require that notice of dismissal be given in writing. The form of notification can be agreed in the employment contract or collective agreement. However, the ERA provides for notification of termination of employment during the trial period and for an employee's right to request a written statement of the reasons for dismissal.
▶ Employment Relations Act (ERA)
→ Section 67B ERA indicates that: Effect of trial provision under section 67A
(1) This section applies if an employer terminates an employment agreement containing a trial provision under section 67A by giving the employee notice of the termination before the end of the trial period, whether the termination takes effect before, at, or after the end of the trial period.
(2) An employee whose employment agreement is terminated in accordance with subsection (1) may not bring a personal grievance or legal proceedings in respect of the dismissal. (...).
→ Section 120 ERA provides that:
(1) Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal.
(2) Every employer to whom a request is made under subsection (1) must, within 14 days after the day on which the request is received, provide the statement to the person who made the request.
Notice period:
▷ There is no statutory minimum notice period under the ERA. Notice requirements are determined by the employment contract or collective agreement.
▻ Where a notice period is specified in the contract, failure to provide it may be treated as a factor indicating unjustified dismissal and may also give rise to a claim for breach of contract or arrears of wages.
▻ Where no notice period is specified in the contract, the courts or the Employment Relations Authority will determine what constitutes reasonable notice in the circumstances.
Pay in lieu of notice: No
▷ Pay in lieu of notice is not required by statute. However, employment contracts or collective agreements may include clauses providing for payment in lieu of notice. Where such a clause exists, failure to make the payment may constitute a breach of contract.
Notification to the public administration: No
No statutory provisions were found in the examined legislation in this respect.
Notification to workers' representatives: No
No statutory provisions were found in the examined legislation in this respect.
Approval by public administration or judicial bodies: No
No statutory provisions were found in the examined legislation in this respect.
Approval by workers' representatives: No
No statutory provisions were found in the examined legislation in this respect.
Definition of collective dismissal (number of employees concerned)
No legal definition of collective dismissal.
▷ There is no statutory definition of “collective dismissal” in New Zealand law.
→ However, the concept of redundancy is well established in case law. Redundancy generally refers to a situation where a worker’s employment is terminated by the employer, wholly or mainly because the position filled by that worker is, or will become, superfluous to the needs of the employer.
(see "Restructuring and redundancy", Report of the Public Advisory Group on restructuring and redundancy, June 2008, p. 9, available in PDF format under "Scope of additional information" below).
Notification to the public administration Yes
▶ Employment Relations Act (ERA)
→ Section 4(1A)(c) ERA requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of one or more employees to provide the affected employees with:
(i) access to information relevant to the continuation of their employment about the decision; and
(ii) an opportunity to comment on that information before the decision is made.
→ Section 4(4) ERA expressly provides that the duty of good faith applies to:
(c) consultation between an employer and its employees (including any union representing the employees) about the effect on employees of changes to the employer’s business;
(d) a proposal by an employer that might impact on the employer’s employees, including a proposal to contract out work or to sell or transfer all or part of the employer’s business; and
(e) making employees redundant.
Notification to trade union (workers' representatives) No
No statutory provisions were found in the examined legislation in this respect.
Notification to workers' representatives: Yes
▶ Employment Relations Act (ERA)
→ See comments under "Prior consultations with trade unions (workers' representatives)" above.
→ The duty of good faith under Section 4 ERA requires an employer to provide affected employees and any relevant union with access to relevant information and an opportunity to comment before making a decision that may adversely affect the continuation of their employment, including decisions leading to redundancy.
Approval by trade union (workers' representatives) No
No statutory provisions were found in the examined legislation in this respect.
Approval by workers' representatives No
No statutory provisions were found in the examined legislation in this respect.
Priority rules for collective dismissals (social considerations, age, job tenure) No
No statutory provisions were found in the examined legislation in this respect.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) Yes
▶ Employment Relations Act (ERA)
→ Under Part 6A of the ERA, employees in the categories listed in Schedule 1A who are affected by restructuring have a statutory right to elect to transfer to the new employer on their existing terms and conditions (§ 69I ERA).
→ This effectively provides a form of priority re-employment right for these employees when their work is transferred to another employer.
▷ Note: This right is limited to employees in the specified categories under Schedule 1A and does not apply to the general workforce.
Priority rules for re-employment Yes
▶ Employment Relations Act (ERA)
⫸ Part 6A of the ERA provides specific protections for certain categories of employees listed in Schedule 1A of the ERA when their work is affected by restructuring (including contracting out, contracting in, subsequent contracting, or the sale/transfer of a business).
→ Under Section 69I ERA, affected employees in these categories have the right to elect to transfer to the new employer on the same terms and conditions of employment. This can operate as an alternative to dismissal in restructuring situations.
▷ Note: These protections apply only to employees in the categories specified in Schedule 1A and do not apply to the general workforce.
tenure ≥ 6 months: 0 month(s).
tenure ≥ 9 months: 0 month(s).
tenure ≥ 1 year: 0 month(s).
tenure ≥ 2 years: 0 month(s).
tenure ≥ 4 years: 0 month(s).
tenure ≥ 5 years: 0 month(s).
tenure ≥ 10 years: 0 month(s).
tenure ≥ 20 years: 0 month(s).
tenure ≥ 6 months: 0 month(s).
tenure ≥ 9 months: 0 month(s).
tenure ≥ 1 year: 0 month(s).
tenure ≥ 2 years: 0 month(s).
tenure ≥ 4 years: 0 month(s).
tenure ≥ 5 years: 0 month(s).
tenure ≥ 10 years: 0 month(s).
tenure ≥ 20 years: 0 month(s).
▷ There is no statutory severance pay or redundancy payment scheme in New Zealand. An employee is only entitled to severance pay or redundancy compensation if it is provided for in their employment agreement or collective agreement. Where no such entitlement exists, the employee has no statutory right to redundancy payment upon termination of employment for economic reasons.
mine workers: Yes
▶ Employment Relations Act (ERA)
▷ There are no statutory limitations on the amount of compensation that may be awarded in cases of unjustified dismissal.
→ Section 123 ERA provides that if the Employment Relations Authority or the Court determines that an employee has a personal grievance (including unjustified dismissal), it may provide for any one or more of the following remedies:
(a) reinstatement of the employee in the employee’s former position or the placement of the employee in a position no less advantageous to the employee;
(b) the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance;
(c) the payment to the employee of compensation by the employee’s employer, including compensation for:
(i) humiliation, loss of dignity, and injury to the feelings of the employee; and
(ii) loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen.
→ Section 123(2) ERA allows the Authority or the Court to order that compensation be paid by instalments if the financial position of the employer requires it.
▷ Note: Up-to-date figures for non-remuneration compensation are available at: https://www.employment.govt.nz/about/employment-law/compensation-and-cost-award-tables/
→ Section 123 ERA does not impose any statutory ceiling or fixed limit. There is no statutory ceiling.
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
→ Section 123 ERA does not impose any statutory cap on compensation. There is no statutory ceiling.
managerial / executive positions: Yes
▶ Employment Relations Act (ERA)
▷ Reinstatement is the primary remedy for unjustified dismissal.
→ Section 125 ERA (as amended by the Employment Relations Amendment Act 2018, effective from 11 December 2018) provides:
(1) This section applies if—
(a) the remedies sought by, or on behalf of, an employee in respect of a personal grievance include reinstatement; and
(b) it is determined that the employee did have a personal grievance.
(2) If this section applies, the Authority or court must provide for reinstatement wherever practicable and reasonable, irrespective of whether it provides for any other remedy as specified in section 123.
police: No
▷ Note: The Employment Relations Act 2000 does not provide for conciliation. Instead, it establishes a comprehensive mediation framework as the primary mechanism for resolving employment-related disputes.
▶ Employment Relations Act (ERA)
▷ While mediation is not automatically compulsory in every case, the statutory framework creates a strong presumption in favour of mediation. The Authority and the Court are required to actively consider and promote mediation before adjudicating disputes. In cases involving alleged breaches of employment standards, mediation can generally only be directed if the parties consent, if the breach is minor, or if other specific conditions under Section 159AA are met.
▷ Mediation Services provided by MBIE
→ The Ministry of Business, Innovation and Employment (MBIE) provides free mediation services to help employers and employees resolve disputes by mutual agreement. If the parties reach an agreement during mediation and the agreement is signed by the mediator, it becomes final and binding on the parties and can be enforced as a contract (§ 149 ERA).
▷ Duties of the Employment Relations Authority
→ Under Section 159 (1) ERA, when any matter comes before the Employment Relations Authority for determination, the Authority:
(a) must, whether through a member or through an officer, first consider whether an attempt has been made to resolve the matter by the use of mediation; and
(b) must direct that mediation or further mediation, as the case may require, be used before the Authority investigates the matter, unless the Authority considers that the use of mediation or further mediation—
(i) will not contribute constructively to resolving the matter; or
(ii) will not, in all the circumstances, be in the public interest; or
(iii) will undermine the urgent or interim nature of the proceedings; or
(iv) will be otherwise impractical or inappropriate in the circumstances; and
(c) must, in the course of investigating any matter, consider from time to time, as the Authority thinks fit, whether to direct the parties to use mediation.
▷ Special rules for breaches of employment standards
→ Under Section 159AA ERA, the Authority must not direct the parties to use mediation or further mediation unless at least one of the following conditions is met:
(a) The Authority is satisfied that mediation will be a cheaper and quicker way to clarify disputed facts or otherwise assist the Authority in considering the matter; or
(b) The alleged breach appears to be minor and inadvertent; or
(c) Both parties agree to mediation; or
(d) The Authority is satisfied that, in the circumstances and having regard to the object of the Act (section 3(ab)), mediation is appropriate.
▷ Role of the Employment Court
→ The Employment Court has similar powers regarding mediation. Under Section 188 ERA, the Court must first consider whether mediation has been attempted before hearing a matter. It may direct the parties to mediation unless it considers that mediation would not be appropriate for similar reasons as those applying to the Authority.
→ However, under Section 188A ERA, if the proceedings involve an application for a declaration of breach, pecuniary penalty, or other orders under Part 9A (relating to serious breaches of employment standards), the Court must not direct mediation.
▶ Employment Relations Act (ERA)
→ Under section 161(1)(e) ERA, the Employment Relations Authority has exclusive jurisdiction to make determinations about employment relationship problems, including personal grievances, which include unjustified dismissal claims as per section 103(1)(a) ERA.
→ Under section 179 ERA, a party who is dissatisfied with a determination of the Authority may challenge it in the Employment Court within 28 days. A challenge may be:
▻ a full hearing de novo (re-hearing of the entire matter); or
▻ limited to specific parts of the determination (in which case the party must specify the alleged errors of law or fact).
→ Under section 187 ERA, the Employment Court has exclusive jurisdiction to hear and determine challenges to Authority determinations.
→ Except as provided in the ERA, no other court has jurisdiction over matters within the exclusive jurisdiction of the Authority or the Employment Court (Sections 161(3) and 187(3) ERA).
Existing arbitration: Yes
▶ Employment Relations Act (ERA)
▷ The ERA allows parties to agree to resolve employment relationship problems, including personal grievances, through arbitration or other alternative dispute resolution processes.
→ Section 154 ERA indicates that: Other mediation services
Nothing in this Part prevents any person from seeking and using mediation services other than those provided by the chief executive under section 144.
→ Section 155 ERA provides that:
(1) Nothing in this Act prevents the parties to an employment agreement from agreeing to submit an employment relationship problem to arbitration.
(2) If the parties to an employment agreement purport to submit an employment relationship problem to arbitration,—
(a) Nothing in the Arbitration Act 1996 applies in respect of that submission; and
(b) The parties must determine the procedure for the arbitration.
(3) The submission of an employment relationship problem to arbitration does not—
(a) prevent any of the parties from using mediation services or applying to the Authority or the court in accordance with this Part; or
(b) otherwise affect the application of this Act.
▷ However, the statutory framework strongly encourages mediation through MBIE services before arbitration or adjudication by the Authority or Court.
Length of procedure:
▶ Employment Relations Act (ERA)
→ There are no strict statutory time limits for the resolution of personal grievances by the Employment Relations Authority. However, challenges to Authority determinations must be filed in the Employment Court within 28 days of the determination (Section 179(2) ERA).
→ The Authority and the Court are required to consider mediation at various stages, which can affect the overall length of proceedings (Sections 159 and 188 ERA).
→ Note should be taken of the provisions of section 114(1), which indicates that:
(1) Every employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with his or her employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period.
▷ There is no single statutory provision that explicitly provides for the burden of proof in cases of unjustified dismissal. It derives from the structure of personal grievance claims and consistent decisions of the Employment Relations Authority and Employment Court.
No reliable official data was identified.