Employment | Parting on good terms
Your rights, obligations and some ideas when leaving a job.
Under New Zealand employment law there is a duty of good faith between employers and employees. This requires both employers and employees to be open, honest, responsive and communicative with each other.
We often hear from clients that believe that in New Zealand it is standard practice to give four weeks’ notice of resigning from a job.
Under the Employment Relations Act 2000 there is no set amount of notice that has to be given. It all depends on what you and your employer agreed. This could be four or two weeks or a variety of time periods depending on what is in the employment agreement. If the agreement doesn’t state a notice period there has to be reasonable notice. What’s reasonable will depend on your particular circumstances, such as how long you’ve been in the job and how senior your position is.
If the employer puts pressure on the employee, whether directly or indirectly, to resign, or makes the situation at work so difficult for the employee that they feel they have to leave, this may amount to what’s called “constructive dismissal”.
If there is a general termination clause the employer must still comply with ‘natural justice’ requirements unless the employee is dismissed in the right way under a valid 90 day trial. In essence, natural justice means being fair. This requires a fair process to be followed by the employer if they are considering dismissing an employee. What this looks like depends on the specific situation. Generally, the employee needs to be given adequate notice of any concerns about them and a chance to respond with a support person with them if necessary. This all needs to happen before any major decisions are made. This is what is also known as ‘procedural fairness’.
Dismissals also need to be ‘substantively fair’. For example, if the employee is facing allegations of ‘serious misconduct’ the behavior has to amount to something that is within the range of what is ‘serious’. The legal test is behavior that destroys the relationship of trust and confidence between an employee and employer. There would also need to be enough evidence of the behavior. Some employers also have disciplinary policies that define what serious misconduct may be that need to be followed.
If you are made redundant the employer must still follow a fair process and the dismissal must be justified and for genuine business reasons. This means that employees should not be dismissed because of reasons that do not relate the business being restructured for example if the employer dislikes the employee. The same ‘natural justice’ requirements mentioned above apply. When going through a redundancy/restructuring there needs to be consultation with employees. This includes meetings and providing financial information to the affected employees to show that the redundancy is justified. Some employers can offer ‘redeployment’ to other parts of the business if it has the capacity and some offer counselling and career advice and support.
Leaving your job with a good reputation is key to securing future employment. It’s worth asking your employer first for a reference rather than simply listing their name and contact details when applying for a new job. When leaving you could also offer to assist with the hand-over. Although legally you are only required to give the contractual notice there may be benefits for the employer being given more notice which may help foster a good relationship. It’s worth considering also departing on a solid note in your last weeks of employment. It may be tempting to ‘clock-out’ as there may be other things on the horizon that may distract you. For good closure it is worth finishing with the same work ethic you started with when making a good first impression.
If things don’t turn out the way you hoped them to Community Law offers a free, confidential service to employees. Our aim is to keep people in their jobs but other options can be explored if this is not possible. If there is a dispute it is important to stay safe online. Keeping disputes confidential is essential in this day of social media and technology.