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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22768
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I am an employer and have received a personnel grievance

Customer Question

Hi, I am an employer and have received a personnel grievance from an ex employee. Id like some advice on how best to respond and my rights as an employer. I have spoken with 'Chris The Lawyer' in the past about the same employee and their dismissal.
Submitted: 4 months ago.
Category: New Zealand Law
Customer: replied 4 months ago.

I don't seem to be able to upload the letter, so ill post below. EMAIL RECEIVED ************************, 11.28pm, Saturday 28th Jan. ------------------------------------------------------------------ For the Attention of Hayden ****** of ********, This is to raise a personal grievance between Ian ****** and Hayden ****** for the issues Mentioned below. This Email is to raise a personal grievance between yourself and Ian ******, who was Employed by ******* and reported to yourself from the 11th of April 2016 until Employment ended on the 28th of November 2016 due to the Position of Commercial Business Development Manager being made Redundant. The Personal Grievance is regarding the Redundancy, the manner in which it was implimented and the reasons given for the Redundancy. It also raises the issue of the manner in which Ian ****** was treated at points in the Employment, along with some unnecessary comments that were made on a regular basis (which we would like to hear your version of how these would have been helpful to an Employee coming from an Employer regarding motivation and performance). On the 31st of October 2016, following a quick discussion on Friday the 28th of October 2016 Ian ****** received a letter informing him that his position was being made redundant at ******, giving him 4 weeks notice as required by the contract. This letter stated that the Position was being made Redundant due to not having worked out regarding the Commercial Customers that were not being brought to the Company, However, the Position had been changed to a Residential Sales role around three Months prior to this Letter and the Commercial part of the job had been sidelined to something to do to make up Ian's hours to the 40 per week that he was doing and was not the Role he was doing anymore apart from if he had some left over hours to make up. It was also mentioned at the brief meeting that the reason was because you wished for Ian to take a paycut in the way of commission, which was put accross as a request to agree to a target that would have been basically unreachable over the Christmas and New Year period due to the Holidays that would have meant that December and January would have been half Months. The reason that you gave for this was that you couldn't afford to keep Ian on at this time of year due to the previous year (when the Company was very different and even more Importantly Ian was not working there to have his performance judged) the Company was quiet. This implies that you have judged Ian's performance for the Months that were at that point in time still to come and on other Peoples performance. It was mentioned at the brief discussion that you were taking a loss having Ian there and suggested a $40,000 Monthly target before paying any commission (noting that Ian's original commission of 10% had been dropped to 5% earlier in the Employment), but Ian had already been getting around this amount in Sales for the Company in the months preceding this suggestion. You had mentioned you needed $10,000 worth of Sales to pay for Ian's wages and other costs and this amount would change whenever you wanted to suggest some kind of negative pay change to Ian, being $40,000 worth of Sales by the time you suggested the target of the same amount. Based on the fact that at the rate Ian was going (making around $40,000 per month in Sales and improving most Months) he would have been making the Company around half a Million Dollars per Year. I find it very hard to believe he was making your Company a loss. Also reading the Comment on your face book page in December about 2016 being the Company's best year ever along with testimonials from some of Ian's Customers, makes it even harder to believe, though I'm sure there are Bank records etc that would prove that you were if that is the case. The other point is that Ian appeared to be treated in a bit of a derogatory manner, which ranged from trying to belittle him in front of Customers, basically ostricising him in meetings and to blatent bullying behaviour that included regular Racial comments that were said coldly and quite seriously after Ian had let you know he didn't want to be referred to on Racial or National terms or singled out because of this. With what we have here it looks as though there is case now for a grievance for those issues. A reply is expected in the next week regarding whether you accept responsibility for the issues mentioned or if you wish to contest that. Should you wish to contest that there is the option of Mediation or the other option of the Employment Tribunal. Should we not hear back we will decide on which of those to proceed with. This Email is Dated the 28th of January 2017. Ian ****** ------------------------------------------------------------------ No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7998 / Virus Database: 4749/13852 - Release Date: 01/28/17

Customer: replied 4 months ago.
I am unsure how to respond.It seems very vague and without a lot of detail. It refers to whether or not I contest it, can I ask for more detail?Also this is from an employee that since the start has been trouble. To list some of the issues we have had that have been looked over, after 1 week of employment wrongfully making accusations that his contract had had pages added to it that he had not signed, refusal to do duties of his role (blatantly on multiple occasion's for two specific duties), after a couple or few weeks of employment it was found he had seriously misrepresented himself during interviewing and he did not have the experience/knowledge he had said (result was a paycut), upon termination it was found that a large amount of private LED360 information/files/record and customer details had been saved in a 'semi' hidden area of his personnel computer, upon termination a number of items/equipment was returned damaged or broken (due to NZ employment law this was not deducted from his pay). So, my question, do/can you give advice on responding with a small claims court claim of my own, do I have any right based on the above?Look forward to your reply. Obviously there is a lot of information around this. Feel free to ask any questions you need, I am comfortable we have dealt with this employee lawfully and I do not accept any claims of racist remarks, on this topic am I right that any PG claim for this would have to have happened in the last 90 days from the letter date (28/1/2017)? which was around the time notice was given and nobody really spoke to him after that.
Expert:  Chris The Lawyer replied 4 months ago.

Hi

I am reading this now

Expert:  Chris The Lawyer replied 4 months ago.

The first point is that the 90 days to claim the personal grievance starts on his last day of employment, so he is still within time to do so.

Expert:  Chris The Lawyer replied 4 months ago.

When you dismiss someone for performance failures you must go through the proper process of verbal warnings followed by a written warning. You can accelerate this process when there are serious misrepresentations about qualifications, and where there has been serious misconduct. If you want to dismiss on the basis of those serious issues, then you must have a meeting to talk about the issues with him and give him an opportunity to answer. The issue of an attempt to hide customer details would probably be such an issue, but you would need to be very confident that his intention was to take that information with him. That is the purpose of any such final interview when you confront him with the misconduct. If for example you did not have a satisfactory explanation for creating such a folder and concealing this, then that may be a basis for dismissal.

Expert:  Chris The Lawyer replied 4 months ago.

The problem with the broken or damaged equipment can of course be set off against any claim.

If you found that he had misrepresented his qualifications and dealt with him by a pay cut at the time, that really puts that issue to bed. Obviously it would put a question mark on his future employment, but you still need to go through the verbal and written warning process

Expert:  Chris The Lawyer replied 4 months ago.

I mention that because you have not described whether you actually did go through that process. I am happy to discuss that with you

Customer: replied 4 months ago.
Yep re the 90 days, understand we are within time for a claim based on the dismissal, however for any and all other claims ie bullying and racial comments, wouldn't that have had to take place after the 31st of October as this is the first time it has been bought up and that's 90 days from email date?
Expert:  Chris The Lawyer replied 4 months ago.

That is an interesting point, because primarily he is claiming a grievance over being dismissed. Normally complaints about issues such as bullying and racism should be raised promptly, and so it is generally an issue of credibility if they were not raised at the final dismissal discussions. He can raise the issues, but as I understand it, it was his performance in terms of the job which was the issue. Those sorts of issues such as racism and bullying are usually raised in the context of someone resigning and claiming constructive dismissal.

Customer: replied 4 months ago.

Nothing was discussed regarding bullying or racist comments. Re warnings, yes verbal warnings were given, I had bought up issues via email for instance, EMAIL to IAN --- Also as discussed today timeliness is vitally important to me and ******, if you not going to be on time communication is the most important thing. I will let being late today slide once, and only once. The expected result of doing this again will be a warning or a reduction in pay for that specific job (depending on your contract wording). Kind Regards ***** ***** warning given due to lack or performance -------------------------------------- 02/07/16 Dear ***** ******, This file record confirms a verbal warning was given on Friday 1st July in respect of unsatisfactory work performance. The reason(s) for giving this verbal warning (was/were): 1. Failure achieve your minimum sales target in June You are further advised that if there is any further incidence of unsatisfactory conduct by you, or any other breach of the Company Rules that warrant a warning, you shall receive a Formal Written Warning. Yours sincerely Hayden ****** Owner -------------------------------------------

Expert:  Chris The Lawyer replied 4 months ago.

What brought this to a head when you dismissed him?

Customer: replied 4 months ago.
Also (more context) regarding the final dismissal interview we had two opportunities to talk, firstly when the gear was dropped off to me and then secondly at his house, this is when the documents were found on his personnel computer after he had guaranteed everything had been removed. I had asked him to do a hand over of customers and contacts (you may remember me asking you about this a couple of months ago) he refused to do so and I was not able to do anything about this at the time.
Customer: replied 4 months ago.
what do you mean?
Customer: replied 4 months ago.
Also he only hit target once, in September, I did not continue to give warnings. Maybe I should have.
Expert:  Chris The Lawyer replied 4 months ago.

When you had the final dismissal meeting, did you tell him the purpose of the meeting and did you discuss the failure to meet his sales targets? Was it express at the meeting that it was his failure to meet the sales targets, and what did he say at the meeting when you raise this? I mention these things because the procedure to dismiss someone needs to be carefully done. So for example, if he was not adding sales targets in September, you should have given him a verbal warning over this. So you may have some difficulties in terms of the procedure, but you can set off against this, the fact that he kept lists of customers and contacts. What can happen in these cases is that he might successfully claim failure of procedural fairness, but you can set off against that his attempt to take customer lists, which is a serious matter

Customer: replied 4 months ago.
If you mean, why did I dismiss him, because he was not preforming. He was bought on as a commercial business development manager. He did commercial for 3 months when we found he was just not good enough, so in the attempt to make it work out with him as we are a small business, this is the first BDM we have employed and we wanted to utilise him elsewhere, we offered him the chance to do residential sales, however he did not do well and due to the significant cost he really hurt our business, we lost quite a bit of money over the months Oct and Nov due to 1 the low performance and not converting sales and 2 his wages. The letter suggests ""Also reading the Comment on your face book page in December about 2016 being the Company's best year ever along with testimonials from some of Ian's Customers, makes it even harder to believe, though I'm sure there are Bank records etc that would prove that you were if that is the case."" regardless of how had it may be for someone to believe our bank statements do prove it.
Customer: replied 4 months ago.
it was very clearly said a lot of time the reason for the dismissal was due to lack of performance. I doubt he would challenge that as we spoke about it a lot, I had very open conversations with him that he is not hitting target and that we had to find a way that he can do better. When it was raised there was not a lot of response he would accept it, as the facts reflected it.
Expert:  Chris The Lawyer replied 4 months ago.

The correct procedure if he was not performing, is to give him verbal warnings, followed by a final written warning, that his sales targets had to be met for he would face dismissal. You have shown examples of warnings for lateness and for failing to meet a target, which relate to June and July, and you would have needed a final written warning about a month or so later to confirm he was on notice that his job was at risk unless sales performance improved

Customer: replied 4 months ago.
Ok. Are you saying I was not within my right to dismiss him?
Expert:  Chris The Lawyer replied 4 months ago.

The problem is because of procedure not whether you should have fired him. In employment cases it is very well established that you must give verbal warnings then a written warning. The only exception is serious misconduct. In this case while you dismissed him for failing to meet sales targets the issue is whether he was on a final warning when you dismissed him.

Customer: replied 4 months ago.
Ok I see. Is my best step from here to ask him to give more details about exactly what he is claiming for? as unless I am reading it wrong he is not specific (and he may not be going from the angle of "I wasn't told I was on my final warning" as you have identified as an issue for me).
Also does he need to say what he want to achieve by doing this PG? I would assume he would want money, it that normally why someone would do this?
Also I should mention he is here on a NZ Work Permit that I had to help him get prior to employment.
Also it sounds like I have no ability to take him to small claims or somewhere similar with stealing company info, miss- representing himself or the damage to equipment??
I'm in meetings for the rest of the day so no rush in reply, ill come back to you after 7pm. thanks.
Expert:  Chris The Lawyer replied 4 months ago.

If he is here on a work visa, you can share the fact that he has been dismissed with Immigration because he cannot stay without a job. If he doesn't raise the issue about procedural fairness then of course you should not. But if he does consult a lawyer, any employment lawyer would raise the issue. These matters are normally dealt with in an employment mediation where you have an opportunity to make an offer to settle. But you can bring a claim against him in the employment Court about stealing the company information and the damage to the equipment.

Customer: replied 4 months ago.
should/can I initially seek clarification on his claim?
Expert:  Chris The Lawyer replied 4 months ago.

Yes, ask him to explain what he wants

Customer: replied 4 months ago.
I have sent the below, so will come back to you when I get a reply.--------------------------------I have read your email and seek clarification on the exact issue/s you wish to make this claim based on. You have suggested bullying and racial comments, in order to know what we are accepting or contesting you will need to give dates and details.
In regards ***** ***** personal grievance what exactly is your grievance? In respect to your comments "the Redundancy, the manner in which it was implimented and the reasons given for the Redundancy?".
Expert:  Chris The Lawyer replied 4 months ago.

That is a good start, and see what he replies

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