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Nouvelle-Zélande - Conditions de forme / procédure du licenciement individuel


Conditions de forme / procédure du licenciement individuel - Nouvelle-Zélande - 2019    

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Forme de la notification du licenciement au travailleur : aucune forme particulière requise

Remarks:
  • The ERA does not require that the dismissal notification be in writing. The form of the notification can be specified in an employment contract.
    However, any dismissed employee has the right to request a written statement indicating the reasons for the dismissal, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later. The employer shall provide such statement within 14 days after the request (art. 120 ERA).

Délai de préavis:
Remarks:
  • No specific period of notice is required by statute. Notice requirement is a matter for contract. Where notice is specified under the contract of employment or under a collective agreement, failure to provide such notice will be treated as a factor evidencing an unjustified dismissal. Moreover, failure to give the requisite notice is also a breach of contract which is actionable by a claim for breach of contract or by arrears of wages claim. Where notice is not specified in the contract, the adjudicatory bodies will determine what constitutes reasonable notice in the circumstances.

    Indemnité compensatrice de préavis : Non

    Remarks:
    • Pay in lieu of notice is not required by statute. However, pay in lieu of notice clauses can be stipulated in the employment contract.

    Notification à l'administration publique: Non

    Notification aux représentants des travailleurs: Non

    Autorisation de l'administration publique ou d'un organe judiciaire: Non

    Accord des représentants des travailleurs: Non

    Notes / Remarques
    An employer is required to adhere to the requirements of procedural fairness and reasonableness and the principles of natural justice in order for a dismissal to be justified. See Sec. 103A ERA.
    Procedural fairness is assessed by the court on a case-by-case basis.

    Section 103A ERA -Test of justification:
    (1) For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).
    (2) The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
    (3) In applying the test in subsection (2), the Authority or the court must consider—
    (a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
    (b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
    (c) whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and
    (d) whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
    (4) In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.