Unjustified Disadvantage Explained…
An employee can claim that they have been unjustifiably disadvantaged when an employer does something that makes an employee’s job harder, something that negatively affects the employee’s terms and conditions of employment or where the employer’s actions may be seen to be unfair, unreasonable or in breach of their Good Faith Obligations.
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Examples of unjustified action causing disadvantage may include:
- Treating an employee unfairly
- Failing to address an employee’s concerns
- Making changes to an employee’s terms and conditions of employment without proper consultation
- Failing to follow a fair and reasonable process when seeking to address concerns (performance or discipline)
Unjustified disadvantage can occur both as a result of the employers’ actions (admission) and as a result of the employers’ inactions (omission)
Frequently Asked Questions.
Can employees claim compensation for being unjustifiably disadvantaged?
If an employee believes that they have been unjustifiably disadvantaged, and the employer fails to address their concerns in a timely and proactive manner, the employee can raise a personal grievance.
In raising a personal grievance claim for unjustified disadvantage, in addition to the employee requesting the employer to address the issue that brought rise to the grievance claim, the employee may also seek compensation from the employer for the hurt and humiliation allegedly caused as a result of the employer actions, or inactions.
Personal Grievance claims for unjustified disadvantage can be resolved through:
- Amicable agreements made between the parties
- Attendance at a mediation meeting convened by MBIE
- A Determination of the Employment Relations Authority
The above compensation payment from Employment Relations Authority Determinations related to unjustified disadvantage is currently $11,667.
How do I respond to a claim of unjustified disadvantage?
If an employee raises a claim of unjustified disadvantage the employer needs to treat this as serious, even if you believe it is not. If the claim proceeds to the Employment Relations Authority the employer would be ‘judged’ on what they did or did not do after receiving the claim.
The employer should therefore acknowledge the claim and then put in place a process to gather all relevant information related to the claim, prior to providing a clear and factual response to the employee, setting out the company’s position and identifying any further action the company will be taking to address the employees’ concerns.
While the resolution of an unjustified disadvantage claim may include the payment of compensation, this is not a requirement in all cases. The priority, where the employee continues to be employed by the company, should be to seek to resolve the employees’ concerns in order that the employment relationship can continue positively.
How do I avoid creating an unjustified disadvantage situation?
When seeking to address any performance or disciplinary matter with an employee, or where you need to consider making changes to an employee’s terms and conditions of employment (including potential redundancy) the employer must ensure that a procedurally fair and reasonable process involving consultation, due consideration of feedback and exploring alternatives outcomes, is implemented.
Such processes must be conducted without predetermination and must provide employees with a genuine opportunity to provide feedback and seek independent support and representation. In addition, this must also comply with all relevant employment laws and regulations.
As implementing the right processes, making the right decisions and responding to claims appropriately can be complex and potentially contentious, if you find yourself in a situation where a potential unjustified disadvantage claim could arise, it may pay to seek professional advice before commencing the process.