Posted on: Apr 19, 2013

Blakely v ACM New Zealand Ltd [2013] NZERA Christchurch 9 provides a textbook example of how not to initiate a “without prejudice” discussion about termination of employment.

In that case, an employer was dissatisfied with the performance of one of its managers and resolved to dismiss her. The employer did not advise the employee about its dissatisfaction with her work. Instead, it required the employee to attend a meeting. The employer worked from a prepared script. The employer said that a dispute had arisen about the employee’s attitude to the workplace and her behaviour and that it considered continuation of the employee’s employment to be untenable. It then said it wished to conduct a discussion on a without prejudice basis and make an offer to resolve the dispute. The employee did not accept the offer and a few days later the employee resigned. The employee raised a personal grievance and alleged constructive dismissal. The employer denied the claim and submitted the Employment Relations Authority was not entitled to take the “without prejudice” discussion into consideration.

The Authority held that the employee had clearly been constructively dismissed and the employer’s conduct was intended to procure her resignation. The Authority also held that it was entitled to take the “without prejudice” discussion into account because:

(i)  the employer made it clear to the employee she would be dismissed before it asked to conduct the      interview on a without prejudice basis
(ii)  there was no dispute at the relevant time, and
(iii) normally an employer should carry out a proper disciplinary process.

This case highlights the importance of not entering into without prejudice or off the record discussions unless an employment dispute or personal grievance has first been raised.  Without a current dispute in progress, you are not protected by the privileged statements (section 121) provision of the Employment Relations Act 2000.

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