Legal Insights, Uncategorized

Employer’s Guide to Disciplinary Action

In QWI v the Great Gatsby Ltd [2017] NZERA Wellington 52 the Employment Relations Authority determined that a chef who, on the balance of probabilities had attempted to sell methamphetamine to her colleagues whilst at work, was unjustifiably dismissed. This is because in order for a dismissal to be lawful it must be substantively justified and procedurally fair. Employers will frequently have good reason to discipline an employee, but the correct process must be followed.

Before taking any action against an employee an employer must:

  • Sufficiently investigate the allegations against the employee;
  • Properly raise their concerns with the employee;
  • Give the employee a reasonable opportunity to respond to the employer’s concerns; and
  • Genuinely consider any response given.

The Disciplinary Process:

  1. Investigate the Allegations

An employer must act without delay when they become aware of an allegation of misconduct. The initial step is to begin an investigation into the allegations raised. The employer should inform the employee before the investigation begins that they will be investigating into an allegation of misconduct. Explain to the employee the details of the allegations, the seriousness of the allegations, and that they may have a representative present at all meetings. The employee should then be invited to an investigation meeting where they will be interviewed and explain what happened. The employer should interview any witnesses and ask them to provide statements. At the conclusion of the investigation an employer should decide whether it is appropriate to proceed to a disciplinary meeting.

  1. Disciplinary Meeting

If it is appropriate to proceed to a disciplinary meeting the employer should inform the employee in writing that they will be required to attend this meeting. An invitation to a disciplinary meeting letter should state the allegation, refer to relevant clauses in the employment agreement or company policies, state who will be involved in the decision making process, when the meeting will be, the possible consequences of the meeting if the allegation is established, and that the employee has the right to bring a representative. Any information gathered during the investigation that the employer will rely upon to make their decision should be attached to this letter. The employee should be given at least 48 hours’ notice of a disciplinary meeting to ensure the employee has enough time to prepare for the meeting.

In the disciplinary meeting set out the allegations and concerns and invite the employee to respond. If the employee’s explanation gives rise to a need to further investigate the meeting should be adjourned so this can take place. If you investigate further make sure you give any additional information to the employee to comment on.

  1. Decision

An employer should wait at least 24 hours from the time of the disciplinary meeting to communicating a preliminary decision. An employer should use this time to give the matter objective consideration. If it is concluded that the allegation has been made out the employer should inform the employee of their preliminary decision and give the employee a chance to comment on the proposed outcome. The employer should then adjourn this meeting to consider any further comments made by the employee for at least 2 hours before making a final decision.

The employer should then communicate the final decision to the employee and confirm this in writing. The employee should be informed that the outcome will remain on their personnel file. A warning letter should detail what conduct is prohibited and include what may happen if there are further instances of misconduct.

Where an allegation is one of misconduct the disciplinary outcome will usually be a warning. If the same type of misconduct happens again further warnings may be issued following a disciplinary process, until the employee is ultimately dismissed. Typically an employee will receive 3 warnings before dismissal but this is subject to what is in an employee’s employment agreement or in the employer’s policies.

Where an allegation is one of serious misconduct the outcome will usually be a final warning or dismissal. Serious misconduct undermines the trust and confidence an employer has in an employee and generally requires an employee intentionally performing an act knowing it was wrong. Misconduct does not require that same level of intent. If the employee is given a final warning and the same type of serious misconduct happens again, subject to what is the employee’s employment agreement or company policy, the employer may dismiss the employee.

Our Top Tips:

  • An employer cannot dismiss someone without first going through a disciplinary process, no matter how serious the allegation.
  • If an allegation is so serious that the employee cannot continue working, you should suspend the employee whilst you complete your investigation and go through a disciplinary process.
  • Always follow any disciplinary process agreed to in employment agreement or policies.
  • An employer cannot discipline an employee for being genuinely ill. If an employee is genuinely ill for extends periods of time this should be dealt with through a medical incapacity process.
  • There is a difference between misconduct and poor performance. Misconduct should be dealt with through a disciplinary process and performance issues should be dealt with through a performance improvement plan.
  • Always be fair and reasonable. Sometimes there may be an innocent explanation for suspicious circumstances.
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Rachel Nightingale, Law Clerk

This article is a brief guide on how to take disciplinary action against an employee. This should not be used as a substitute for legal advice. If you have any questions or need assistance with any employment issues, please contact Rachel Nightingale on 09 837 5734.

Email: rnightingale@corbanrevell.co.nz

 

 

Legal Insights, Uncategorized

Debt Recovery

Recovering an unpaid debt can be a very frustrating and overwhelming process.

There are a variety of ways to recover an unpaid debt, but without a doubt, clients will want the most efficient and effective option available to them. Our experienced team can provide assistance by investigating the debt, explaining the options available and tailoring a debt recovery method according to the circumstances of each case.

There will be a number of factors to consider when recovering an unpaid debt, which include:

  • Whether the debt is disputed or not
  • Whether the debtor is an individual or a company
  • Whether the debt is secured or not
  • What the terms of the contract are

The first step in the debt recovery process is demanding the debt. Often an initial phone call, a letter of demand or a statutory demand from a law firm is all that is required to get debtors to pay.

If the debt remains, legal action may be sought by obtaining an order for payment. Our experienced legal team works to assist clients by taking the case to the Disputes Tribunal, The District Court or the High Court. The options available will depend on the circumstances of each case.

There is also a variety of enforcement processes available, such as:

  • Financial Assessment Hearing
  • Attachment Order
  • Warrant to Seize Property
  • Charging Order
  • Bankruptcy or Liquidation
  • Garnishee Order
  • Contempt of Enforcement Proceedings

Our team will be sure to guide you through each step and advise you on the likely outcome of each.

Often clients are embroiled in extensive correspondence trying to recover and negotiate the debt. Allowing our experienced legal team to handle the matter will liberate you from the stress of the process and will allow you to resume with your business without worrying about a debt going stale.

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Lea Abuyan, Law Clerk

We offer a competitive debt recovery package, including a no obligation initial consultation. The debt recovery department of Corban Revell Lawyers is managed by Lea Abuyan. If you have a debt recovery matter you would like to discuss with us, please feel free to contact Lea.

DDI: 09 837 0550

Email: labuyan@corbanrevell.co.nz

Legal Insights, Uncategorized

When your customer goes into liquidation.

Your business supplies goods or services on credit. One of your customers goes into liquidation. Luckily you have been fully paid. Then a few months later you receive a letter from the liquidator. The liquidator wants you to repay the last three payments that you received from that customer.

Why has this happened? What should you do? Can I help?

In this article the payment the liquidator wants repaid is referred to as a “voidable preference”

Why has this happened?

One important principle of liquidation/insolvency law is that all creditors should be treated evenly. This equal treatment is ensure that creditors do not spend all their time monitoring the financial position of their debtors. Equal treatment requires that in certain circumstances where one creditor is better off than another creditor, the better off or preferred creditor should return some of his bounty to the liquidator.

What should you do?

The first thing to do is not to ignore the letter. Secondly you need professional advice. This will let you access the:

  • legal merits of the liquidators position
  • costs of defending the liquidators claim
  • possibility of the matter being resolved out of Court

Can I help?

The Official Assignee is often appointed by the Court to liquidate companies. I worked for the Official Assignee’s office between 1996 to 1999 and have practiced as a lawyer for over 20 years. Whilst working for the Official Assignee and subsequently, I have successfully dealt with numerous void preference claims.

This experience enables me to very quickly assess the three issues referred to above and guide you how to deal with the voidable preference quickly.

Call me now if you have a customer going into liquidation.

craig

Craig Orton, Associate

DDI: 09 837 3505

Mobile: 021 944 001

Email: corton@corbanrevell.co.nz

 

 

 

Legal Insights, Uncategorized

Estate Planning is for Everyone

From time to time articles in periodicals or magazines set out the advantages of estate planning through the use of wills and/or family trusts. These advantages are generally summarised as ensuring that your heirs receive their intended entitlements after you have passed on and that your assets are protected while you are alive. However these articles do not always make clear the benefits for the average person. Estate planning is not only for those with large assets, it is for everyone and it does not cost much.

Older People and Estate Planning

Older persons who have owned a home for a number of years are often surprised by the huge increase in value of their assets, which will form their estate on their death. This is especially true in the Auckland area where any house will be worth at least $500,000.00 in today’s market.

Young People Need Wills Too

Younger people whose homes may have large mortgages also need to consider their increasingly valuable estates as they progress through life and reduce those debts.

A legal adviser can draft standard wills for a few hundred dollars, an amount that is minimal compared to the costs of legal advice or legal proceedings which may be required to remedy an unfair distribution of an estate when no will has been made (Administration Act 1969).

There is peace of mind in knowing that assets will be passing as intended by the will-maker.

Risks with DIY Wills.

Homemade (or ‘off the shelf’ type) wills are usually valid but any defects in their wording or signing and witnessing does result in additional and sometimes considerable cost and delay in having them proved in the High Court. A lawyer is inevitably required to file the will in the Court so it pays to have the will drafted properly in the first place.

A Family Trust

A family trust can protect assets, which can survive a business failure or the family home while the financial problems are worked through. The cost will depend on the level of protection required but is justified by the benefits. A family trust may be a bit more costly to set up and involve some ongoing administration but the benefits on protecting assets will far outweigh the costs.

Estate planning is for everyone and should be regarded as insurance for the future. It may not prove to be necessary but if it is, your heirs will thank you.

Contact Tom now on 09 837 5733

Tom Allen, Senior Legal Executive

Email: tallen@corbanrevell.co.nz

Legal Insights

Te Reo Māori me ona Tīkanga and the Law

It is said that language is not only a vehicle for communication, but also carries culture and values. The two are part of each other: Te Reo me ona Tīkanga.

In this week of paying particular attention to Te Reo Māori, we’d like to provide you with an overview of our thoughts on how Te Reo Māori me ona Tīkanga can and is being incorporated into legal practise using the performance of mihi as an example.

In our practise of law we are very conscious of the fundamental role that Te Tiriti O Waitangi plays. We are therefore keen to promote and encourage the working operation of the special partnership that it formed. We believe that there is scope to do so within the formalities offered in procedure of our courts,  and the manner in which we interact with all of our clients. This article explores how we are doing this.

We look at; How we define mihi? Why mihi? When is mihi an appropriate part of legal practice? The history of mihi within the New Zealand judicial system and the benefits of a future where mihi and te ao Māori normalised within legal practice, in court, in law offices and as part of full range of legal situations.

NB: This article is a summary of seminar we gave on 14 March 2018 for Te Ao Maori and the Law: Navigating Pathways.  If you would like a copy of the formal and more comprehensive seminar article please complete the form below and a pdf version of the seminar will be emailed to you.

How we define Mihi?

Definitions can be found in the The Dictionary of the Māori Language by HW Williams or via the online Māori dictionary. For the purposes of this article we define “mihi” in terms of “greeting” and “acknowledging an obligation”, within a formal setting. Axiomatically, it is done, and perhaps only done correctly, and meaningfully, in te reo Māori. It is therefore important to note that the language of the mihi, is also accompanied by its relevant rules: te reo me ona tīkanga.

Why Mihi?

In Māori language tradition formal speech making was an oratory art form. It was a vital vehicle of the Rule of Law, recounting and affirming history and tradition. It regulated procedure; it provided structure and order and intelligibility to resolve issues.   It is encapsulated in the well known whakatauākī- “Ko te kai a te Rangatira, he korero, he korero, he kōrero.” (What is the food of the leader? It is knowledge. It is communication.)

As the main form of greeting and acknowledgment within a formal speech situation mihi can acknowledge the celestial, those who have passed on, guests, hosts or dignitaries. It is the way to pay due respect, show dignity, courtesy and honour. It helps relate the speaker to the person the oratory is being directed at, acknowledging that person’s status vis a vis the speaker, and the land on which it is performed.

By performing mihi the speaker elevates the mana of the person to whom it is directed, and thus fortifies the human relationship, as well as the relationship between the relevant persons and the relevant land. It is done to “hei whakakotahi” or brings people and land and celestial things together[1]. If it were not done at all, for instance, it would appear that the speaker is more concerned to violate a key principle of Tīkanga, which is humility[2]. It may also mean that the relationship does not flourish.

In our view, the mihi at tīkanga therefore has both procedural and substantive elements to its nature.

So when should you mihi as part of your practice of the law?

  1. In court, with reference to the Judge, and to the other party;
  2. In your conduct of a file, when meeting Māori clients for the first time; and
  3. In formal occasions, when hosting a group of visitors, or commemorating a special event.

As mentioned, the purpose of your mihi is to greet the person (or persons) to whom it is directed, and acknowledge their mana, as well as the land and other relevant things. This paves the way for the relationship to start and continue on the right footing.

The history of mihi in New Zealand Courts

One obvious question to consider is whether there is an inherent right to mihi to the Court?[3]

Technically, the right to mihi to the Court is at the discretion of the Judge who controls the proceedings to ensure the proper administration of justice. In times gone by a lawyer wishing to simply mihi to the court nonetheless needed to make an application in writing well before the hearing. Now, thankfully, more Judges are accepting of mihi being undertaken as part of the practice of the court and formal applications are not being insisted upon.

The Law Commission in its report of 2017 entitled “Tīkanga, Diversity and Contempt” noted that; “…Tīkanga and the use of te reo Māori has not always been welcomed.”[4] The Commission cited two cases. Firstly, Mair v District Court at Wanganui, where the undertaking of a karakia was done, in spite of the Judges direction not to, resulted in a finding of contempt by the Judge and the imposition of a prison sentence[5]. The undertaking was said to challenge the authority of the court. This was upheld on appeal by the High Court. Secondly in the Environment Court. In Tiakina Te Taiao Limited v Tasman District Council an informal request to perform a karakia and mihi was declined in the first instance by the presiding Judge, but later allowed[6].

The Civil Procedure that regulates the machinery and governs the administration of civil justice does not refer to the practice of mihi. The statutes covering the rules for the District Court, Senior Courts and High court lack practice notes or direction regarding mihi.   Instead the opportunity or potential to mihi to the Court appears to come under the inherent jurisdiction of the court or the practice of the court over a period of time.

Positively, the Judges of the District Courts have put in place initiatives that contrast with such examples.   This includes the opening and closing of the courts in te reo, a revised tīkanga education programme, use of pōwhiri at the swearing in ceremonies of all new judges, and the establishment of the Kaupapa Māori Advisory Council.

Judges can be confident in embracing the practice of mihi in their courts. It is not long-winded, and fundamentally upholds the dignity of the procedure of the court. It is part of the land on which the court sits and therefore respects the connection of the land to the people who are gathering upon it. It is therefore a contributor to the protection of civil procedural law, ensuring that there is orderly, regular and public functioning of the legal machinery and the operation of due process of the law. It works to uphold the rule of law- not to detract from it.

When to mihi

When conducting your file.

Māori clients are rightly demanding that their counsel act in a culturally appropriate way. Being able to mihi to a client is one important way of acting appropriately in the service of Māori. Usually a mihi would be performed when the client is being met for the first time, and in an on-going fashion at the times when the larger group, a hapu, whānau or iwi, is presented to from time to time.

At formal occasions.

As mentioned, mihi is a key part of the format of whaikōrero, or formal speech making. When you are asked to speak to a group, whether they are visitors to your offices, or at a function off site, performing a mihi is a good way of immediately connecting you to your audience, the land and the surrounding things. It sets the relationship onto a correct footing.

We encourage you to perform mihi when it is appropriate. The more you do so, the more normal this will become.

Examples of mihi

To assist, there are two examples below, which have been provided by the writer’s Ngāti Whākaue relation, Mr Scotty Morrison, so they must be good!

The first is an example for use in court. The second is for use outside of court, and in a more generic sense.

Mihi to the Court

Ki te Kaiwhakawā(Court):

Te Whare Kooti e tū nei, te papa tapu e hora nei, nga iwi e tau nei, tēnā koutou katoa.

E tangi ana ki nga hunga kua ngaro

E te Kaiwhakawā, e mihi ana ki a koe, te urutapu nui o tēnei kooti, tēnā koe, otirā, tēnā tātou katoa.

Mihi for other occassions

Ki te marea (generic):

Te rangi e tū nei, te papa e takoto nei, tātou e hui nei, tēnā tātou katoa

E tangi ana ki nga hunga kua ngaro

Tātou ngā waihotanga, kia ora anō tātou

 

John Kahukiwa, Managing Partner, Corban Revell
John Kahukiwa, Managing Partner

Nā John Kahukiwa, Managing Partner (Ngāti Whākaue)

me

Maureen Malcom, LLB, BA (Māori)
Maureen Malcolm, Solicitor

Maureen Malcolm, Solicitor (Ngāti Tarawhai),

If you would like a copy of the formal seminar this article overviews please email us with your details and we wills you out  print friendly pdf version of the full article.

Footnotes

[1] Refer for instance He kōrero kai a te Rangatira na Te Poroa Malcolm, year unknown, paper for Te Arawa.

[2] See for instance Te Ao Hurihuri – the World moves on , aspects of Māoritanga King M ed, (1975) Hicks, Smith & Sons Ltd, John Rangihau Being Māori pp221-233.

[3] I mean here the civil courts.

[4] Chapter 3 Disruptive behavior in the courtroom.

[5] [1996] 1 NZLR 556.

[6] 10 April 2008 Decision No C 40/2008.