An employee's right to advice - getting the wording right

Most people, if asked, will tell you that employment law favours employees. Essentially, they’re right. Justice in this country is impartial but our Employment Relations Act is drafted on the assumption that the power of employers and employees is inherently unequal. The law tries to compensate for this inequality by tilting the legal landscape (reasonably heavily) in the employee’s favour.

That sentiment was strongly reflected in the Employment Relations Authority’s recent decision in Bula v Aoraki Mount Cook Alpine Village Limited,* where the Authority outlined what the employer should have done when inviting an employee to a disciplinary meeting which was potentially going to (and, in fact, did) result in his dismissal.

Key points

The Bula decision suggests that employers in this situation must do more than simply tell the employee that they can bring a support person or representative to the meeting. The employer needs to tell the employee that:

It is advisable for them to seek advice (not just that they can be accompanied at the meeting);

They have the right to seek advice in advance of the meeting; and

Any representative can be independent of the workplace.

So what should a letter say?

Where employers are considering dismissal the invitation letter should include something along the lines of:

What if we are just considering a warning? Do we have to go this far?

It’s not completely clear from the decision (and, in any event, the Authority doesn’t “make law” in the same way that higher Courts do, so we can’t automatically assume that this determination will be applied or followed in every case). However in our view:

First sentence – always include it: Whenever you invite an employee to a disciplinary meeting you should include the first sentence (telling them they can get advice before the meeting and bring an advisor to the meeting). That applies even if you are only considering giving a formal warning

Second sentence – it depends: You should always encourage the employee to get advice where (a) their dismissal is possible or (b) where there is some other good reason – for example, where you know that the employee isn’t taking the situation as seriously as they should. If a final warning is possible then, to be safe, we think it’s also worth including this sentence. However we don’t think it’s necessary if you are just considering a warning, and there’s no other good reason to include it.

Need more help?

Getting this wording right is obviously just one aspect of ensuring your disciplinary process is fair and legal. For specific advice or assistance, please contact a member of our employment team.

* Gallaway Cook Allan’s Geoff Bevan acted for Mr Bula, who was successful in this case.

An employee's right to advice - getting the wording right

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