Unfair Dismissal (Unjustified Dismissal)

Have you been dismissed?

In New Zealand, a dismissal is only justified if the employer follows a fair process and the outcome is one a fair and reasonable employer could have reached in all the circumstances (the section 103A test).

Put simply: the reason and the process both matter. Even where an employer believes there were misconduct or performance concerns, they still need to investigate properly, give you a genuine opportunity to respond, and keep an open mind (no predetermination).

What a fair process usually requires

For an employer to justify dismissal, a fair and reasonable process must be undertaken (section 103A - test of justification). The following criteria should generally be met:

• Clear allegations and notice: You should be told what the issues are and what the possible outcomes could be.
• Relevant information: You should be given access to the material the employer relies on (reports, complaints, CCTV, emails, notes), subject to legitimate privacy limits.
• Time to respond: You should be given reasonable time to consider the allegations and prepare your response.
• Representation: You should be allowed a support person or representative if you request one.
• A genuine chance to be heard: You must be able to respond and provide your side of the story (including evidence).
• Genuine consideration: The employer must properly consider your response before deciding.
• An unbiased decision-maker: The decision should be made without predetermination or bias.
• Proportionate outcome: Dismissal should generally be a last resort where a lesser outcome would not be reasonable.
• Written outcome: You should receive a written decision setting out the reasons. If you do not receive a written outcome, you can request reasons for dismissal in writing (section 120 - statement of reasons for dismissal).

What counts as a "dismissal"?

A dismissal is not only a formal termination letter. Depending on the facts, it can include:

• Immediate or "summary" dismissal (told to leave, access cut off, job ended on the spot).
• Forced resignation / constructive dismissal (you resign because the employer left you with no real choice).
• Dismissal during a trial period where the trial clause/process is defective (trial periods have strict requirements).
• Employment ended before you start (for example, the employer withdraws the job or tells you not to start).

What remedies may be available?

If you bring a Personal Grievance (PG) for unjustified dismissal and you are successful, remedies can include:

• Reinstatement (getting your job back, where reasonable).
• Lost wages (reimbursement of remuneration lost as a result of the dismissal).
• Compensation for humiliation, loss of dignity, and injury to feelings ("hurt and humiliation").
• Loss of benefit (for example, lost Kiwisaver, commission, allowances, or other contractual benefits, depending on the facts).

If you believe you have been unfairly dismissed, we can assess whether the employer's process and decision meet the section 103A standard, and if not, raise a Personal Grievance (PG) and pursue appropriate remedies.

If you want help, the fastest way is to submit the case form with your timeline and any key documents, and we will contact you to discuss next steps.
Employee Case Form