Failure To Consult

October 27th, 2020 - Barbara Buckett

A Sure Fire Road To A Personal Grievance

If an employer is considering making a change, their first step is to refer to the employment agreements and workplace policies in place, since these set out the basis for the employment relationship and the process for changing its terms.

As a general rule, contractual terms cannot be varied without the consent of both of the contracting parties. An employer has the right to manage his or her business and the line between the employer’s right to manage, which does not require the consent of an employee (but does require consultation), and a variation of contract, which does require the consent of an employee, can sometimes be hard to draw.  Certain terms and conditions are more protected than others – for example, the wage to be paid and hours of work are clearly important terms of the agreement and the employer cannot unilaterally reduce the employee’s wage rate or hours of work.

Any such changes require additional good faith or other process arrangements, including consulting with employees and their representatives, providing time to respond to proposals and considering their comments.  Any agreed change to the employment agreement should be recorded in writing. Remember, having the agreed terms and conditions in writing is a legal requirement, whether the change is temporary or permanent.

Employers who follow a careful change process will reduce their chances to claims of:

Where an employer does not follow the rules of good faith an employee may take a personal grievance. Where the Employment Relations Authority or the Employment Court find that good faith rules were not followed by the employer then they may award a penalty for a breach of good faith.

This was recently the case whereby an Auckland supermarket worker was awarded $24,557 for unjustified dismissal after her former boss changed her hours without consulting her – read more about this case here  https://www.stuff.co.nz/business/industries/123210860/cast-aside-supermarket-worker-to-receive-24557-in-lost-wages-and-compensation

Should you need to make changes to an agreement, or you feel that you may have been treated unfairly as an employee, we can help.  Contact us for a confidential discussion.

Note: BuckettLaw takes no responsibility for the consequences of any actions taken on the basis of our articles. Any views expressed or comments made in an article are the writers option only. The content in our articles does not constitute legal advice. If you need legal or expert advice you should obtain specific advice about your case or matter from a professional. For legal advice based on your individual situation please contact us to speak with one of our expert lawyers.

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Barbara Buckett

Barbara Buckett is a highly experienced senior employment lawyer with over 35 years of practice in New Zealand. She provides expert advice on all areas of employment law and has a proven track record of delivering excellent results for clients. Barbara has extensive experience in resolving workplace issues and is an experienced litigator. In her free time, she enjoys reading, traveling, working out, and fine wine and dining with friends.

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