You were treated badly. You have a personal grievance against your employer for unjustified dismissal, presuming that the events you relate above took place within the last 90 days. You could seek compensation for emotional distress from the way that the redundancy was carried out, as well as for lost wages.
Having a legitimate reason for the redundancy (which your employer appears to have, presuming that their comment about no longer being able to afford your position is true) is only half of the story.
Your employer also has to follow a fair process. That process is set out in case law. An essential component of fairness is the element of consultation. You were not consulted with at all. You were simply told about a decision that had already been reached without your input. Fair consultation involves putting the possibility of the redundancy to you and giving you an opportunity to state your views, provide other ideas and give feedback. That step was skipped by your employer. That omission is fatal in any redundancy.
In addition, your employer failed to give you any notice of the redundancy. You have not stated whether you have a written employment agreement and what it says about redundancy. Most employment agreements these days make no provision for actual redundancy compensation. Older employment agreements often used to provide a redundancy compensation formula (commonly six weeks pay for the first year of service and one week’s pay for each completed year of service thereafter). However, just because your employment agreement may say that no redundancy compensation is payable, that does not mean that your employer is absolved from paying anything. In your case, the obligation to pay arises from the failure to carry the redundancy out fairly and to provide reasonable notice.
What notice you were entitled to is governed by your employment agreement. However, if your employment agreement only provides for two weeks notice in event of redundancy it would probably be deemed by the Employment Relations Authority (ERA) to be unreasonable. If your employment agreement was silent on notice for redundancy (or if you did not have an employment agreement) a reasonable period of notice is implied. Generally a fair notice period is at least 4 weeks. Because your employer did not give you any notice, they must now pay you out the notice period.
It is extremely important that you formally raise your grievance within 90 days of your dismissal. You should not rely on a mere verbal statement to your ex-employer that you are unhappy about matters. You should prepare a formal written letter which clearly states that you are pursuing a personal grievance for unjustified dismissal because the way that the redundancy was carried out was unfair. You should state in the letter what action you wish your employer to take to satisfy your grievance. (In this regard it would be wise for you to take legal advice as to what you may realistically be entitled to). You should also state that you are willing to go to mediation.
Mediation is virtually inevitable in employment disputes. If you try to go straight to the ERA, they will order you to first go to mediation. Mediations are run by the Department of Labour. There is no cost for applying for or attending mediation (save for the cost of a representative – if you elect to have one). The purpose of the mediation is for an independent person (a mediator employed by the Department of Labour) to facilitate discussions to see if an agreement can be reached between you and your ex-employer to settle your grievance. Usually, settlement involves payment of money by the employer, however, this is not always the case. Other elements such as an apology or a good reference can be more important than a monetary payment.
If the matter does not settle at mediation, you are left with the options of either abandoning your grievance or filing a statement of problem in the ERA and seeing the matter through to a hearing. This can be a rather stressful experience. Although the ERA is described as a “low level, informal” forum for dispute resolution, it does require you to be able to prove your case (with witnesses) and address the relevant law. It would be wise to engage a reputable employment lawyer or advocate if you are considering action in the ERA.
There is no right to compensation just for losing your job. Many redundancies are for legitimate reasons and are implemented in a procedurally fair way. Such redundancies cannot be successfully challenged. However, in your case the procedure was lacking and that caused you considerable distress. You are entitled to redress for the employer’s failure in that regard and you should pursue your rights. But do so in a realistic manner, with a view to achieving a settlement with a minimum of expense and stress.
There is one other important matter. Don’t focus on your redundancy. Focus instead on the opportunity that your redundancy presents. We understand that it is not easy, but there will almost certainly be another job out there for you somewhere. You just have to find it. Talk to friends, find a reputable recruitment consultant, respond to job advertisements (from the papers or the internet). Remain positive – it will make a difference.
For more information on redundancies contact Andrew Clemow andrew.clemow@gazeburt.co.nz.
