Resignation Letter — During Disciplinary Action (New Zealand)

Yes. An employee in New Zealand may choose to resign at any point during a disciplinary process, including before a decision has been made about dismissal. Resigning during a disciplinary process is a lawful choice that the employee is entitled to make. However, there are important legal and practical considerations. First, if the employee resigns, the employer is not required to continue the disciplinary process, and the employee will not have a record of dismissal. Second, the employee remains entitled to all outstanding pay and leave entitlements under the Holidays Act 2003, regardless of the reason for their resignation. Third, if the disciplinary process was unlawful, unfair, or in breach of the employer's good faith obligations under the Employment Relations Act 2000 — for example, if the employer made false allegations, denied the employee natural justice, or created an environment so intolerable that the employee had no real choice but to resign — the employee may be entitled to raise a personal grievance for constructive dismissal under section 103(1)(b) of the ERA 2000. The employee must raise the personal grievance within 90 days of the resignation under section 114 of the ERA. Resignation during a disciplinary process should be done carefully — ideally after obtaining legal advice — to preserve the employee's options, including the right to raise a personal grievance if the disciplinary process was unlawful.

Constructive dismissal is a form of unjustified dismissal under section 103(1)(b) of the Employment Relations Act 2000. It occurs when an employee resigns — and the resignation is treated as a dismissal in law — because the employer's conduct made the employment relationship so difficult or intolerable that the employee had no real choice but to resign. Under New Zealand law, a constructive dismissal personal grievance can be raised where: (a) the employer breached the employment agreement in a fundamental way (including the implied duty of trust and confidence); or (b) the employer made the employee's working conditions so unreasonable that no person in the employee's position could reasonably be expected to continue in the employment. Common scenarios in which constructive dismissal may arise include: the employer conducting a fundamentally unfair disciplinary process (e.g., denying the employee natural justice, making predetermined decisions, or making false allegations); the employer pressuring the employee to resign; the employer demoting or changing the employee's role or conditions without justification; the employer subjecting the employee to bullying, harassment, or discrimination; and the employer failing to address serious workplace problems raised by the employee. To succeed in a constructive dismissal personal grievance, the employee must show that the employer's conduct caused the resignation, and that a reasonable employee in their position would have felt they had no alternative but to resign. The test is objective, not purely subjective.

Under section 114 of the Employment Relations Act 2000, an employee must raise a personal grievance with their employer within 90 days of the date on which the action alleged to amount to the personal grievance occurred, or came to the notice of the employee (whichever is later). For a resignation-based constructive dismissal personal grievance, the 90-day clock starts running from the date of resignation (since the resignation is the act that constitutes the constructive dismissal). The employee must formally raise the personal grievance with the employer — which means communicating the grievance to the employer in writing, identifying the nature of the grievance and the circumstances that gave rise to it. An employee who misses the 90-day deadline loses their right to raise the personal grievance. The Employment Relations Authority has a discretion to extend the 90-day period where it is 'just' to do so, but this discretion is exercised sparingly — the employee must demonstrate a good reason for the delay and that it would be just to allow the late grievance. The 90-day time limit applies to most personal grievance claims, including unjustified dismissal (including constructive dismissal), unjustified disadvantage, discrimination, and duress. The exception is sexual harassment, which has a 12-month time limit under section 114(2) of the ERA. Employees who are considering raising a personal grievance are strongly advised to seek employment law advice as early as possible.

The without-prejudice privilege in New Zealand protects communications made in the course of genuine settlement negotiations from being used as admissions in subsequent legal proceedings. A resignation letter is not automatically without-prejudice simply because it is labelled as such. For the without-prejudice privilege to apply under New Zealand law, the communication must: (a) be made in the context of a genuine attempt to settle an existing or anticipated legal dispute; and (b) be communicated in circumstances where the parties mutually understand that the communication is not to be used in evidence. A resignation letter that is simply a letter of resignation — with or without a without-prejudice label — is generally not protected by without-prejudice privilege, because it is not a settlement communication. However, if the resignation letter is accompanied by a proposal to resolve any potential personal grievance claims (e.g., an offer to resign in exchange for a settlement payment), and is expressly marked without prejudice, the settlement-related content may attract the privilege. The mere fact of resignation is generally not without-prejudice. Employees who wish to resign in a way that preserves their right to raise a constructive dismissal personal grievance, while also exploring a negotiated exit, should seek employment law advice before sending any correspondence to their employer.

A Resignation Letter — During Disciplinary Action (New Zealand) does not legally require a lawyer in New Zealand, and individuals and businesses may draft and execute the document independently. The Employment Relations Act 2000 does not mandate legal representation for the creation or signing of this type of document. However, seeking independent legal advice from a qualified New Zealand lawyer is recommended for transactions involving substantial financial value, complex regulatory requirements, or cross-border elements where multiple legal jurisdictions may apply. A lawyer can verify that the document complies with all applicable statutory requirements, identify potential risks specific to the transaction, and confirm that the terms adequately protect the interests of all parties involved. The High Court of New Zealand has jurisdiction over disputes arising from this type of document, and Companies Office may impose additional compliance obligations depending on the nature of the underlying transaction. Professional legal review is particularly advisable where the document will be submitted to government agencies or used as evidence in legal proceedings.