PG Process : Proposed Changes To Law

NUPE will be writing submissions on the proposed law changes.

The Test of Justification

The Test of Justification is focused on the Employer’s behaviour and actions. The question of whether a dismissal or an action was justified must be determined whether the Employer’s actions, and how the Employer acted, were what a fair and reasonable Employer could have done in all the circumstances at the time the dismissal or action occurred.

When applying the test, the courts examine the conduct and actions of the Employer only.

Proposed change

The courts will have to also consider if the Employee’s actions or behaviour interfered with or prevented the Employer from being able to conduct a fair process.

Such behaviour may include when an Employee does not attend meetings, refuses to respond, or is away sick for a length of time during a disciplinary process

Impact

The test of Justification is one of the core parts of the Employment Relations Act. It is what the courts rely on in determining if an action or dismissal is justified or not.

Employers are able to determine which processes and policies are followed, and make decisions about an Employee’s work that may impact on an Employee’s career opportunities and financial position.

Employers have the ability to monitor what an employee does, give instructions, provide training so that they have a work force that operates in the manner that they find acceptable. An Employee has to work within the Employer’s systems and expectations.

As the Employer does have a high degree of control and power in the employment relationship, the test of justification is a way to ensure this power is not used in a way that is unfair to the Employee. The proposed changes to this test means the courts in applying this test must take into account the Employee’s behaviour, actions and conduct regardless of how bad the flaws may be in an Employer’s process.

With these changes it may be considered fair and reasonable for a dismissal to be justified even if an Employer has undertaken a flawed or incomplete process as long as the Employer proves that an Employee has been obstructive in some manner which interferes with an Employer’s procedures.

The proposed changes do not identify what behaviours would be considered obstructive. This is likely to be determined on a case by case basis.

Advice

Unions have developed a unique employment relationship with the Employer as they have to interact with each other in good faith on many different matters.

This means a Union is in a good position keep the Employer operating to agreed processes, policies and procedures

This provides safeguards for an Employee in that they are less likely to be subject to faulty or inadequate procedures and policies. In any situation where an Employee believe their job is under threat, they should seek employment advice and consider having someone assist in representing them.

Disclaimer: these are opinions and views of NUPE and should not be substituted for legal advice. If this article has raised any questions or concerns please contact us directly

Public submissions are now being called for the Employment Relations Amendment Bill 2025

The closing date for submissions is 2.00pm on Wednesday, 13 August 2025