Terminating Employment
WEB213NZA24: The decision to dismiss an employee needs to be carefully considered because employees have rights, employers have obligations and you have a duty to properly advise your clients. Gain practical strategies on how to handle a termination by looking at the steps needed to effectively preform a disciplinary investigation, the process of restructure or redundancy, what to do if you encounter a mental health issue mid-process and how to effectively negotiate settlement agreements.
Description
Attend and earn 3 CPD hours
Chair: Penny Swarbrick, Partner, SBM Legal
9.30am to 10.15am Disciplinary Investigations and Dismissal
Examine the dos and don’ts of the process and how to avoid claims:
- Planning:
- Is an investigation required?
- What is the scope?
- What form will it take?
- Who will conduct it?
- Employer obligations and procedural fairness:
- Employment agreement, policies, procedures
- Suspension
- Logistics: interviews, questioning, credibility, documentation
- Whistle-blowers
- Recent case law update
Presented by Laura Scampion, Partner and Julia MacGibbon, Senior Associate, DLA Piper
10.15am to 11.00am Restructuring and Redundancies: Avoiding a Personal Grievance
- Examining an employer’s legal obligations when implementing the restructuring and/or redundancy process
- Ensuring a fair and proper process is followed, from effective consultation, to appropriate consideration of feedback
- Clarifying an employee’s entitlements upon redundancy
- Examining recent case law, particularly in relation to restructuring and redundancies implemented during the COVID-19 crisis
Presented by Jennifer Mills, Director and Andrew McCombie, Solicitor, Jennifer Mills & Associates
11.00am to 11.15am Break
11.15am to 12.00pm Mental Health Issues in Termination Situations
- How do you recognise a mental health issue?
- What happens if it arises in the middle of a formal process?
- Medical certificates and medical examinations
- How can you terminate in mental health situations?
- Is it still safe to sign a settlement agreement with an employee with a mental health condition?
Presented by Greg Cain, Partner, Dentons Kensington Swan
12.00pm to 12.45pm Dealing with Disputes Arising from an Employment Termination
- What types of dispute can arise?
- The difference between employer-initiated dismissal and constructive dismissal
- Can you influence which way it goes?
- Tactical steps to avoid an unjustified dismissal claim
- Tactical steps to best position yourself to defend a claim once made
- Maintaining the record; evidence you need collect and preserve
- When should you mediate?
- As soon as a grievance is raised?
- Only after a personal grievances is filed?
- advantages and disadvantages:
- The bigger picture:
- considering the impact of an employment termination on restraint of trade, intellectual property, and confidentiality clauses
- Interaction with shareholders agreements and employee share schemes
Presented by John Hannan, Barrister, Bankside Chambers
Learning Objectives
- Receive practical guidance on disciplinary investigations and dismissal
- Understand the process and issues arising from restructures and redundancy
- Develop awareness of mental health issues that can arise during a termination
- Learn how to effectively deal with a dispute before or during the termination process
Presenters
Penny Swarbrick, Partner, SBM Legal
Penny is a partner at SBM Legal. She has over thirty years of broad legal experience. In the course of her career Penny has worked for the NZ Department of Labour as a solicitor, as an employers’ representative and solicitor with the national employers’ organisation, as a barrister sole before forming this specialist employment law firm. Her expertise is acknowledged by prestigious international legal publications Who’s Who Legal, Chambers Asia Pacific and Asia Pacific Legal 500. Penny has also served as a Convener of the ADLS Employment Law Committee, made submissions on behalf of the Law Society and others to Select Committees on legislative change, provided educational road shows for the Law Society, and is a regular speaker at ADLS, NZLS and private conferences.
Laura Scampion, Partner, DLA Piper
Laura Scampion's more than 20 years' experience in employment and health & safety law spans both New Zealand and the United Kingdom. She's appeared before various courts and tribunals in both countries, acting for some of New Zealand's, and the world's, largest companies. Laura specialises in multijurisdictional matters for employers based across the globe. As well as cross border expertise in transactional employment work, Laura regularly advises on performance, misconduct, restructuring/re-organisations, whistleblowing, discrimination and labour inspector/compliance issues.
Laura heads up the national employment team at DLA Piper. She also leads DLA Piper New Zealand’s Diversity & Inclusion initiative, sits on the firm’s APAC Regional Advisory Committee, and the board of the firm’s Global Scholarship Programme.
Julia MacGibbon, Senior Associate, DLA Piper
Julia has acted on a range of matters, including personal grievances, health and safety, Holidays Act audits, restructuring, redundancies and immigration. Julia has appeared in the Employment Relations Authority, District Court and High Court.
Jennifer Mills, Director, Jennifer Mills & Associates
Jennifer Mills is one of New Zealand's leading employment and health and safety lawyers, with extensive experience in employment litigation, industrial relations, health and safety, complex restructures, large scale Holidays Act issues, executive remuneration and regulation, executive exits and immigration. Jennifer advises clients on all employment related matters including drafting employment agreements and HR policies, managing poor performance, restructuring and redundancy, disciplinary investigations and dismissals, leave entitlements and secondments. She also advises on fixed term employment arrangements, independent contractor arrangements, KiwiSaver and superannuation, collective bargaining, establishing businesses in New Zealand, recruiting employees, and restraints of trade and other post termination obligations. She has been listed as a 'leading individual' in the 2017 Asia Pacific Legal 500 and is rated one of the leading employment lawyers in the world, by Chambers Global.
Greg Cain, Partner, Dentons Kensington Swan
Greg Cain is a partner at Kensington Swan, specialising in employment law and health and safety. Greg assists clients with restructurings, performance and disciplinary matters, carrying out bullying and sexual harassment investigations, dealing with personal grievances, restraints of trade and other contractual questions, and regularly appears before the Employment Relations Authority and the Employment Court. Greg also advises clients on a range of health and safety issues, including earthquake-prone buildings, managing contractors, and dealing with asbestos and hazardous substances. Greg also assists clients carrying out investigations into serious harm incidents, and represents clients in WorkSafe investigations and prosecutions. He also assists the Government Health and Safety Lead with its efforts to improve health and safety performance across the public sector. Greg is a board member at Community Law Wellington and Hutt Valley
John Hannan, Barrister, Bankside Chambers
John has a broad range of experience and expertise as a commercial litigator, including in employment law, education law and property disputes. Prior to joining Bankside Chambers, was senior litigation partner in global law firm DLA Piper. John is an employment law expert and regularly ranked as a leading individual in Chambers and Legal 500 Directories. John is a specialist in Education Law advising on governance, employment, enrolment schemes, student discipline including suspension, stand downs, exclusion and expulsion, discrimination and privacy complaints. John has Arbitration, Mediation and Tribunal experience as Deputy Chair, New Zealand Teaching Council Disciplinary Tribunal – 2022 – 2020 and is a trained mediator.
Andrew McCombie, Solicitor, Jennifer Mills & Associates
Andrew joined Jennifer Mills & Associates in November 2018, after graduating with an LLB and BSc from the University of Otago. Andrew has been involved with a range of employment and regulatory issues and has assisted in two large regulatory cases brought under the Health and Safety at Work Act. Andrew has assisted clients with disciplinary and performance management processes, restructuring, medical incapacity issues, reviewing and drafting employment agreements and policies, as well as personal grievances. He is particularly interested in dispute resolution and advocacy. Andrew regularly attends mediation and facilitated bargaining, and has experience representing clients in mediation with the Ministry of Business, Innovation and Employment.