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Top 10 questions to ask when you HIRE or FIRE an employee in New Zealand

Hiring

1. Does the employee have a right to work in New Zealand or does the employee need a work visa?

2. Is the employment offer subject to any condition precedent (e.g. satisfactory reference check, criminal record check, credit check, obtaining the necessary qualification/s)?

3. Is the recruitment screening and decision making process compliant with the NZ Human Rights Act and free from challenge of discrimination?

4. Is the employee free from restrictive covenants to accept the offer of employment?

5. Is the personal information of the candidate/employee collected and used with in accordance with New Zealand Privacy Act?

6. Does the remuneration of the employee meet the statutory minimum wage requirement?

7. All employees are entitled to statutory required benefits granted under New Zealand Holidays Act (e.g. statutory annual leave, public holidays, sick and bereavement leave, etc) but does the employer wish to provide enhanced entitlements and/or redundancy compensation?

8. Is the employee intended to be hired subject to the statutory 90-day trial period, or alternatively a probationary period?

9. Has the employee been provided with a reasonable opportunity to seek independent legal advice regarding the offer of employment?

10. Has the employer received a signed copy of the employee's employment agreement before the employee starts work?

Firing

1. Does the employer have a valid reason for the termination (as all terminations must be for "cause" and there is no concept of "at will" employment in New Zealand)?

2. Has the employer followed a fair and reasonable process before making the decision to terminate (e.g. did the employer sufficiently investigate the allegations, raise concerns with the employee, give the employee a reasonable opportunity to respond, genuinely consider the employee's explanation (if any), follow a performance management plan, etc.)?

3. Has the employer provided the employee with an opportunity for feedback on the employer's preliminary view on sanction/s (e.g. dismissal on notice, summary dismissal) before making a decision to terminate?

4. Has the employer complied with any company disciplinary policy and/or the employee's employment agreement to ensure compliance?

5. Has the employee been offered the opportunity to have a support person/representative present during all disciplinary investigation meetings?

6. Has the employer checked the employee's personnel file for past instances of similar conduct, work history, years of service and previous warnings?

7. Is the termination free from challenge that it was based on one of the prohibited grounds of discrimination – i.e. sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status or sexual orientation?

8. What payments upon termination of employment (e.g. outstanding salary/wages, payment in lieu of notice, annual holiday pay, long service payments, etc.) will the employee be entitled to?

9. Will the employer seek to enforce any restrictive covenants in the employee's employment agreement?

10. If the employee raises a personal grievance for unjustified dismissal and/or unjustified disadvantage, will the employer enter into without prejudice negotiations/offer to pay an ex-gratia payment and/or compensation for hurt and humiliation under s123(1)(c)(i) of the Act in return for the employee entering into a settlement agreement in full and final settlement of all claims which the employee has or may have?

 

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