Workplace Issues: When Do You Need a Lawyer?

The legal aspects of workplace bullying

Many issues can arise in a workplace that may require extra guidance from an employment lawyer. There are a number of ways the relationship between an employer and employee can break down. On the part of the employee, misconduct, serious misconduct, and incompatibility are all issues that can arise. How the employer deals with these issues might also require legal advice for all parties involved.

Section 103A of the Employment Relations Act 2000 states that an employer must act as a fair and reasonable employer would have done in the circumstances. Any disciplinary action must be carried out after a fair and reasonable investigation to determine the most appropriate outcome. At the root of these processes is determining whether the relationship of trust and confidence between parties can be maintained.

Misconduct and serious misconduct

Misconduct by the employee is a situation where an employee does something wrong that affects their position. This could be use of explicit language or wearing inappropriate clothing. This conduct will need to be repeated in order for it to attract serious disciplinary consequences. Serious misconduct includes actions such as theft or sexual harassment.

When issues arise in the workplace, they need to be dealt with constructively in order to preserve the relationship of trust and confidence. In these circumstances, an employer might engage an employment lawyer to help with a disciplinary process or a dismissal.

Conduct outside of work

An employee’s conduct outside of work can be assessed as long as it is connected to their employment. Smith v Christchurch Press Co Ltd [2001] details that the business must be negatively impacted for conduct outside of work to be assessed. In Hohaia v New Zealand Post Ltd, an employee was dismissed for creating blog posts that belittled customers and work colleagues and brought the company into disrepute. This sort of action is likely to hinder the employment relationship between parties.

An employer is entitled to regulate behaviour outside of work that can be connected to the workplace. Policies might be put in place for social media use or blogging to ensure that employees comply with their company’s standards.


A breakdown in an employment relationship could occur through incompatibility. Case law is strict on this point, and it is unusual to have a justifiable dismissal on these grounds. The employee being at fault is often a factor taken into account. In Snowdon v Radio New Zealand [2014], there was an “irreconcilable breakdown” in the employment relationship for which the employee was found to be largely responsible. For incompatibility to be a justifiable ground, the employer must be shown to have taken reasonable steps to reconcile differences to mend the relationship.

Unjustified dismissal

In relation to any of the above issues, an employer must comply with the standard laid down at section 103A of the Employment Relations Act 2000 when dismissing an employee. An employer must have acted as a fair and reasonable employer would have done in the circumstances. An employee can bring a personal grievance claim for a dismissal that they believe is unjustified. If the employer has not acted fairly or reasonably, this may be held to be so.

There are a multitude of issues that could arise in an employment relationship. If you need any extra guidance, get in contact with Bell & Co’s employment lawyers on (04) 499 4014.

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