In short. "Why?" is the question underneath every unfair process, and it has a name: neoliberalism — the political project that privatises gains to the powerful and socialises risk onto everyone else. In the workplace it lands as a manoeuvre. Your employer's representative summons you to a meeting without giving you the information relevant to the continuation of your employment and about the decision, then calls the empty session your "opportunity to comment", or "just the process", and tells you to "bring a support person" — while quietly leaving out your right to representation. Each move runs against duties that are written down, public, and easily found. Under section 4 of the Employment Relations Act 2000 you are entitled to the information first, and to a real opportunity to comment on it before the decision is made. You cannot comment on what you have never been shown.
Best read with Home Brew's Listen to Us playing — with full credit and respect to the band.
People come to an advocate with a sense of injustice they can feel but cannot always name. The meeting was a foregone conclusion. The information never arrived in time. The same conduct that ended a worker's career would have been waved through for someone higher up the building. Underneath the particular grievance sits a more general one worth saying out loud: the rules are not applied evenly, and they were never meant to be. That is not paranoia. It is the design.
The name for the design is neoliberalism. In the scholarship it is more than a synonym for "the free market". The geographer David Harvey, whose account is the standard reference, describes it as a theory which holds that human well-being is best advanced by freeing private enterprise within a framework of strong property rights, open markets and free trade — and, more bluntly, as a political project to restore the wealth and power of economic elites after the crises of the 1970s. Where the post-war settlement had hemmed the market in with social and political constraints, the neoliberal turn set the market loose and rebuilt the state around it: privatisation, deregulation, the retreat of public provision, and the steady transfer of risk from institutions onto individuals.
None of that is ancient history here. Aotearoa New Zealand ran one of the most rapid neoliberal experiments in the democratic world from 1984 onward, and the labour market was remade in its image — most sharply by the Employment Contracts Act 1991, which stripped collective protection back to the individual contract. The present law, the Employment Relations Act 2000, was a partial correction, restoring good faith and a statutory floor of fairness. But the underlying asymmetry of power did not disappear. It simply moved into the procedures.
The neatest description of the asymmetry is older than the word neoliberalism and was put by Martin Luther King Jr in 1968: we too often have, he said, socialism for the rich and rugged free-market capitalism for the poor. The same idea runs through more than a century of political economy, from Henry George in 1891 to Michael Harrington in the 1960s, and it survives today in the plainer slogan of the trading floor: privatise the gains, socialise the losses.
When a bank fails, the public underwrites it; when a worker fails, the worker absorbs it alone. Large enterprises enjoy limited liability, public subsidy, and the quiet socialisation of their costs onto the community and the state. The individual at the bottom of the structure is handed the opposite philosophy: personal responsibility, market discipline, and the full and undiluted consequences of any misstep. One set of actors is insulated from risk by design; the other is made to carry it. The point of naming it is not to despair but to locate the worker's own dispute on a larger map. The unfairness in a disciplinary meeting is not a one-off accident of a bad manager. It is the local expression of a doctrine that has spent forty (40) years teaching the powerful that risk is something other people carry.
An employment relationship is the place where this abstraction becomes concrete and personal. It is a relationship of structural inequality: one party owns the job, sets the process, controls the documents, and pays for the advice; the other party needs the income to live. The law of the Employment Relations Act 2000 exists precisely because the parties are not equals, and it answers that inequality with a duty of good faith and a test of justification that the stronger party must satisfy.
Neoliberalism's contribution is to dress that inequality in the language of process. And the sharpest version of the trick is procedural: keep the worker in the dark, then run a meeting that looks like fairness and produces a decision that was made before anyone sat down. The risk of the employer's decision — the risk that it is wrong, unjust, or unlawful — is quietly transferred onto the worker, who must spend time, money and nerve to resist it. Socialise the loss; privatise the gain. The good news is that the law has already named this manoeuvre, and given the worker the tools to stop it.
The single most important duty for a worker facing a decision is buried in plain sight in the good faith provision. Section 4 of the Employment Relations Act 2000 does more than ask the parties to be polite. Subsection (1A)(c) provides that where an employer is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of a worker's employment, the employer must give the affected worker access to information relevant to the continuation of their employment, about the decision — and an opportunity to comment on that information before the decision is made.
Read the order of those words, because the order is the whole point. Information first. An opportunity to comment on the information second. The decision last. An employer who reverses that order — who calls a meeting, withholds the material, invites the worker to "respond", and then decides — has not complied with section 4 of the Employment Relations Act 2000. It has staged the form of consultation while denying its substance.
The Employment Court has spelled this out. In Vice-Chancellor of Massey University v Wrigley the Court held that the purpose of the provision is to ensure that an affected worker is fairly and adequately informed about the basis for a decision that may harm their employment, and is given "an opportunity to comment in a meaningful way before that decision is made." An opportunity to comment is not meaningful if the worker is kept from the information that would let them comment at all.
Good faith disclosure before a decision — section 4(1A)(c) of the Employment Relations Act 2000; Vice-Chancellor of Massey University v Wrigley [2011] NZEmpC 37.
There is a narrow and legitimate exception: under section 4(1B) of the Employment Relations Act 2000, an employer need not hand over genuinely confidential information where there is good reason to keep it confidential. That exception is real, but it is not a blanket. It does not license withholding the information that actually bears on the decision against you, and an employer who hides behind it must still give you enough to respond meaningfully. The companion article Disclosure and the Right to Information Before a Decision works through what that means in practice.
Because the duty is clear, the manoeuvre depends on disguising it. The disguises are a small, predictable set of phrases, and each one collapses the moment it is held up against the obligation it is meant to obscure.
"It's just the process." The process is not a neutral ritual to be hurried through. It is the carrier of the legal duties — information, a meaningful opportunity to comment, a fair hearing — and "the process" is precisely the thing the law regulates. Calling it "just" the process is an attempt to drain it of the very content that makes it lawful.
"This is your opportunity to comment." An opportunity to comment is only that if there is something to comment on. Offered before the information, or alongside a decision already taken, it is not an opportunity; it is a formality recorded so the file looks complete. The right described in The Right to Be Heard is a right to be heard on the case actually being made against you — which you must first be shown.
"That doesn't stop you from responding." Strictly, no — you can always say words into the room. But responding without the information is responding blind, and the law does not measure good faith by whether the worker was technically permitted to speak. It measures it by whether the worker was fairly and adequately informed first. Good faith under section 4 of the Employment Relations Act 2000 requires the parties to be active, constructive, responsive and communicative, and not to mislead or deceive one another. A representative who presses a worker to "respond" to a case they have not been allowed to see is not meeting that standard.
The most quietly damaging of the guises is the last: "bring a support person." It sounds generous. It is also a substitution. A support person, on the usual understanding, is there to sit beside you — to take notes, to steady you, to offer a break. A representative is there to act for you: to speak, to challenge, to test the employer's case, to put your position. The two are not the same thing, and the difference is the difference between being accompanied and being defended.
Your entitlement is not limited to the lesser of the two. The right to be represented is recognised in section 236 of the Employment Relations Act 2000, and a fair process has long been understood to include not only the right to have a representative present at a meeting that may affect your job, but the obligation on the employer to tell you that the right exists and to allow you a real chance to exercise it. An employer who offers "a support person" while saying nothing of representation has narrowed your rights by vocabulary — and a process that turns on that narrowing is open to challenge.
So the correction is simple, and you are entitled to make it: I will be bringing a representative. Not a witness, not merely a support person — a representative who can speak for you and test what is put.
Here is the part the manoeuvre most depends on you not realising. None of these duties is hidden, technical, or contested. Section 4 of the Employment Relations Act 2000 is published free, in full, on the New Zealand legislation website. The duty to inform before deciding, the right to a meaningful opportunity to comment, the right to representation — all of it is a short search away. The asymmetry that neoliberalism runs on is, in the end, an information asymmetry: it works only while one side knows the rules and trades on the other side not knowing them. The remedy begins the moment that stops being true.
Good faith, after all, is a two-way duty, and it expressly requires the employer to be responsive and communicative. An employer who keeps the worker uninformed of duties the employer itself is bound by is not acting in the spirit the statute demands. Reading the obligations — and naming them, calmly, in the room — is not aggression. It is the law read back to the people relying on you not to have read it.
If a decision is challenged, it is measured against the test of justification in section 103A of the Employment Relations Act 2000, which asks, on an objective basis, whether the employer's actions and the way it acted were what a fair and reasonable employer could have done in all the circumstances. That objective character was settled by the Employment Court in Simpsons Farms Limited v Aberhart [2006] NZEmpC 92. Among the things the law directs the Authority and the Court to weigh are whether the employer sufficiently investigated, whether it raised its concerns before acting, whether it gave the worker a reasonable opportunity to respond, and whether it genuinely considered the response. A meeting run without the information defeats every one of those at the root: a worker who was never shown the case cannot meaningfully respond to it, and an employer cannot genuinely consider a response it made impossible.
And the duty has teeth. A serious and sustained breach of good faith under section 4 of the Employment Relations Act 2000 can attract a penalty under section 4A of the Employment Relations Act 2000. The point of fairness in law is not decoration. Process is the only leash the powerless hold on the powerful. Insist on the information before the meeting, insist on a representative, insist that any comment you make is comment on a case you have actually been shown — and the asymmetry the doctrine depends on begins to fail at the one scale most people will ever confront it: the meeting room, the letter, the determination.
Legislation cited is linked to the current consolidated text on the New Zealand Parliamentary Counsel Office website at legislation.govt.nz. Case authorities are linked to the Working for Workers case law and reference repository at caselawandreference.workingforworkers.nz. Vice-Chancellor of Massey University v Wrigley [2011] NZEmpC 37 and Simpsons Farms Limited v Aberhart [2006] NZEmpC 92 are held in the repository with readable text layers; the passages relied on, including the quoted words from Wrigley, have been confirmed against the judgments. The exception for confidential information is in section 4(1B) of the Employment Relations Act 2000. The minimum requirements of a fair process — including notice of the case, a representative rather than a mere witness, and unbiased consideration — are stated here as settled principle; the older authority often cited for them is not held in the repository and is not relied upon. The attribution of socialism for the rich and rugged free-market capitalism for the poor to Martin Luther King Jr (1968), and the account of neoliberalism drawn from David Harvey's A Brief History of Neoliberalism (2005), are matters of public record cited for commentary. The musical credit is to the New Zealand group Home Brew; no lyrics are reproduced. This article is commentary and general information; it is not legal advice and does not establish an advocate–client relationship.
When a decision-maker — an employer, the Accident Compensation Corporation (ACC), an incorporated society, or any public body exercising a statutory power — runs a process without giving you the information first, or steers you toward a "support person" instead of a representative, you are entitled to stop and insist on what the law actually requires. That is where we come in.
Working for Workers stands up for people facing unfair and unreasonable process, across four areas of practice:
Fairness in Law · Accident Compensation Corporation (ACC) Law · Employment Law · Incorporated Societies Evaluation
Whatever the decision-maker, if you are up against an unfair or biased process, get in touch and we will help you work out where you stand.