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

News and Events, Uncategorized

Rachel Nightingale

IMG_5151Corban Revell’s talented litigation lawyer Rachel Nightingale has just been admitted to the bar.  Rachel works across two high performing teams at Corban Revell; the family team with Mark Tolich and the litigation team with Peri Hoskins and Craig Orton. 

Rachel completed her law degree in 2016 and already has impressive experience advising clients in a range of employment matters.  She has a strong foundation in employment law and her experience advising the Employers and Manufacturers Association on employment relations, compliance, and best practice advice provide her with additional insight in employment litigation matters.

Rachel is increasingly involved in assisting with Care of Children applications as part of her role within the family team together with Tania Smitton and Mark Tolich.

Contact Rachel now for employment and family law matters.

Contact Details:

DDI: 09 837 5734

Email: rnightingale@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.

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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