The test whether an employer’s action is justifiable or not is, in New Zealand and as we all know, what a reasonable and fair employer could have done in all the circumstances. In other words, as long as one of the options available to the employer at the time is fair and reasonable, the action is justifiable. It might not be the action the Court or Authority considers best, but as long as it is within the range of acceptable options, the employer is justified.
This has been in the situation in the UK as well, where Employment Tribunals must consider objectively whether or not the an action was within the “range of reasonable responses” available to the employer. The Court of Appeal has now also held that the “range of reasonable responses -test” is also compatible with the European Convention on Human Rights.
Which, on the other hand, probably means that the test in s103a Employment Relations Act is also compatible with the Human Rights Act (NZ). At least, I cant see how the same test could comply with the European Convention, but not with the NZ version.