Fegan & Co Ltd

The nature of the investigations that we are commonly engaged to complete include:

• Complaints regarding inappropriate actions and behaviours by staff or management
• Bullying and harassment – including sexual harrasment and discrimination
• Analysis of personal grievances With several investigations on the go at any one time, we have the experience to run investigations in an efficient and time focused manner, providing our clients with the assurance that, in following our advice and process, they can be confident that they are in safe hands

We are members of the Association of Workplace Investigators of New Zealand

For organisations that have a Union presence amongst their staff, the challenges of being able to agree on the collective terms and conditions of staff, without resulting in some form of industrial action, can be daunting Union organisers always have the upper hand over employers with respect to their knowledge of industry related terms…

to their knowledge of industry related terms, conditions and pay rates with them often using this advance to push the Employer into agreeing to conditions greater than what may be justified

However, as we are frequently engaged as the Employer Bargaining Agent, we have the depth of knowledge of industry specific conditions, pay rates and settlement details ensuring that we can ‘level the playing field’ for the employer party

A company only needs to have two union members in order for them to request to be covered by a Collective Agreement, with this then covering all future new employees of the Company whose roles fall under the agreed coverage clause Approaching any collective bargaining process therefore needs to be undertaken from a strategic perspective to ensure that any resulting agreement does not become restrictive or burdensome for the Company

If you are approached by a Union regarding a potential new Collective Agreement, or you have an existing agreement that is due for renewal, we are available to support you through this process to ensure that you get the results that you require

A restructure may be required where an employee’s terms and conditions need to be amended to align to a change in the workplace structure or operations, where the number of roles are to be reduced or it may include retaining employees within a different capacity or on different terms and conditions

Restructures are very difficult to get entirely right with this being proven by the fact that current Employment Authority statistics confirm that 87% of employee personal grievance claims for unjustified dismissal as a result of a restructure are successful However, a recent Authority Case relating to a restructure managed by us on behalf of a client was successful with this demonstrating the quality of our advice and guidance

The key aspects to a successful restructure process are ‘substantive justification’ – the decision to restructure the role is supported by factual evidence and ‘procedural fairness’ – the manner in which the restructure was undertaken is procedurally correct (in the eyes of the ERA) You must be successful in both of these areas to be certain that you do not incur unwarranted liability

Over the years we have been in business we have assisted multiple clients in restructuring their businesses with many of these situations never being challenged beyond the actual restructure process in the workplace Where they have been challenged our process and guidance has been proven, providing our clients with the assurance that in working with us they can be confident that they are in capable hands An employee is not required to have just cause to raise a Personal Grievance with some claims raised being more a form of ‘money grab’ through appealing to the employer to make some form of compensatory payment to make the issue go away However, the majority of claims do have some merit however, these present a significant risk and liability for the employer Current Hurt and Humiliation Compensation Payments ordered by the Employment Relations Authority, in the event of a successful claim by the employee, average approximately $13,000 with a number of successful claimants being awarded payments in excess of $20 – $25,000

Being professionally represented when responding to a personal grievance is the key to reducing or avoiding this liability We provide full representation to Employers only (we do not do Employee Representation differentiating us from most law firms) with our total fees being significantly less than those charged by a law firm – who may not be a specialist in Employment law In the past few years, we have represented clients in over 152 Personal Grievance claims

Employee Discipline and Performance Management

Poor performance management or disciplinary processes can lead to successful personal grievance claims – not only when this results in termination of the employee but also when a formal written warning is provided Getting the process right is critical, Case Law statistics confirm that employee’s win the majority of claims, primarily due to a lack of good process by the Employer When you incur a situation that warrants implementing a performance management or disciplinary process how this process commences will be as critical as how it concludes In such situations we act as ‘Advocate of the Employer’ in assessing the information to determine the actual allegations to be presented, drafting any correspondence to the employee, facilitating the meeting, assisting the employer to assess the responses and confirm the outcomes

We adopt a strong ‘process-based’ approach to ensure that all procedural risks are removed and, through our assistance in the decision-making process, we are able to ensure that there is a solid substantial basis to the final outcome A small investment in accessing our skills and expertise may prevent the risks of more substantial payments having to be made where a grievance claim is raised

In situations where the Trust and Confidence in the Employment relationship has diminished, we are able to broker Settlement Agreements on behalf of the Employer with these producing a full and final outcome that cannot be challenged at a later date

Mediations and Employment Relations Authority Representation​

Where possible, we will  seek to resolve any employment relations dispute within  workplace, however, where this cannot be achieved, we provide a full representative service to Employers through both the Mediation Services of MBIE or through the Employment Relations Authority and Employment Court In developing our representation approach, we adopt a strategic model that minimises risk and liability in order to enhance the prospect of a positive outcome for the Employer

Our approach has resulted in us achieving success in Personal Grievance Claims where others considered the odds to be well in favour of the Employee (i e successfully defending a 90 Day Trial Period claim where the IEA was not signed until several weeks after the Employee commenced employment) We usually have approximately 6-10 Personal Grievance claims on the go in any one month

In addition to supporting your business through these processes, if you have disputes between employees within the workplace that require resolving – as Accredited Mediators with the Resolution Institute of New Zealand, we are able to facilitate in-house mediation meetings to achieve full resolution Our fees for providing full representation in mediation and the ERA will be well below those charged by the traditional law firm, due to our ability to operate under a highly efficient business model

We only provide our services to the Employer (or their Managers) assisting in the resolution of employment disputes and the development of the Organisation