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employment

The disciplinary process: Steps an employer must follow

Key Takeaway

Employers in New Zealand must follow a fair disciplinary process, underpinned by good faith principles. This involves conducting a thorough investigation, clearly informing the employee of allegations, providing all relevant information, and giving them a genuine opportunity to respond with a support person or representative. Decisions must be reasonable and justifiable.

The Disciplinary Process: Steps Employers Must Follow in New Zealand

When an employer needs to address concerns about an employee's conduct or performance, they must follow a fair and robust disciplinary process. This process is governed by New Zealand employment law, primarily the Employment Relations Act 2000, which emphasises good faith and natural justice principles.

Overarching Principles: Good Faith and Justification

At the core of all employment relationships in New Zealand is the duty of good faith. This means that employers and employees must deal with each other openly, honestly, and without misleading or deceiving each other [Source: Employment Relations Act 2000, s 4]. In the context of a disciplinary process, good faith requires transparency, fair dealing, and a genuine attempt to resolve issues.

Should an employee claim unjustified dismissal or unjustified disadvantage, the Employment Relations Authority or Employment Court will apply the justification test. This test requires an assessment of 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 [Source: Employment Relations Act 2000, s 103A(2)]. This includes assessing both the substantive reasons for the action and the fairness of the process followed.

Key Steps in a Fair Disciplinary Process

To meet the requirements of good faith and ensure any disciplinary action is justifiable, an employer typically needs to follow these steps:

  1. Conduct a Thorough and Fair Investigation Before confronting an employee, the employer should undertake a fair and reasonable investigation into the alleged misconduct or performance issue [Source: Employment Relations Act 2000, s 103A(2)]. This involves gathering all relevant facts, evidence, and witness statements. The purpose is to establish the facts, not to prove guilt.

  2. Raise Concerns and Provide Information The employer must clearly inform the employee of the specific allegations or performance concerns [Source: Employment Relations Act 2000, s 4(1A)(c)(ii)]. This notification should ideally be in writing and set out the precise nature of the issues.

    Crucially, the employer must provide the employee with all relevant information that forms the basis of the concerns raised [Source: Employment Relations Act 2000, s 4(1A)(c)(iii)]. This ensures the employee knows the full case against them and can adequately prepare a response.

    The employer should also inform the employee of the potential disciplinary outcomes, including the possibility of dismissal, and advise them of their right to have a support person or representative present at any meetings [Source: Employment Relations Act 2000, s 4(1A)(c)(v)]. A support person is an individual (e.g., friend, family member) who provides emotional support, while a representative (e.g., lawyer, union delegate, advocate) can actively participate and speak on the employee's behalf.

  3. Provide an Opportunity to Respond The employee must be given a reasonable opportunity to respond to the allegations and provide their explanation or side of the story [Source: Employment Relations Act 2000, s 4(1A)(c)(iv)]. This means allowing sufficient time to prepare, review the provided information, and seek advice. The meeting should not be rushed, and the employee should feel heard.

  4. Genuinely Consider the Employee's Response After receiving the employee's explanation, the employer must genuinely consider it before making a decision [Source: Employment Relations Act 2000, s 4(1A)(c)(iv)]. This requires an open mind and a willingness to change the initial view if the employee's explanation warrants it. Failing to genuinely consider the response can undermine the fairness of the entire process.

  5. Make and Communicate a Decision Once all information has been gathered and genuinely considered, the employer must make a decision regarding the disciplinary action, if any. The decision must be one that a fair and reasonable employer could have made in the circumstances [Source: Employment Relations Act 2000, s 103A(2)]. The employee must be informed of the decision, ideally in writing, including the reasons for the decision and the specific disciplinary action taken.

Personal Grievances

If an employee believes that their employer has acted in a way that is unfair or unjustifiable, for example, by conducting a flawed disciplinary process or imposing an unjustified penalty, they may raise a personal grievance. A personal grievance is a claim made by an employee against their employer, usually for an alleged unjustified dismissal, disadvantage, discrimination, or sexual harassment [Source: Employment Relations Act 2000, s 103]. There are specific timeframes for raising a personal grievance, generally within 90 days of the action occurring or coming to the employee's attention [Source: Employment Relations Act 2000, s 114].

Definitions of Key Terms

  • Disciplinary process: A formal procedure used by an employer to address an employee's alleged misconduct or poor performance.
  • Good faith: An overarching principle in New Zealand employment law requiring employers and employees to deal with each other openly, honestly, and without misleading or deceiving each other [Source: Employment Relations Act 2000, s 4].
  • Justification test: The standard applied by the Employment Relations Authority or Employment Court to determine whether an employer's actions, including dismissals, were what a fair and reasonable employer could have done in all the circumstances [Source: Employment Relations Act 2000, s 103A(2)].
  • Personal grievance: A claim made by an employee against their employer, typically for an alleged unjustified dismissal, disadvantage, discrimination, or sexual harassment [Source: Employment Relations Act 2000, s 103].
  • Support person: An individual (e.g., friend, family member) who accompanies an employee to a disciplinary meeting to provide emotional support and assist the employee in understanding the process.
  • Representative: An individual (e.g., lawyer, union delegate, advocate) who accompanies an employee to a disciplinary meeting and can actively participate, speak on their behalf, and represent their interests.

When to Seek Independent Legal Advice

Navigating employment law can be complex for both employers and employees. Individuals seeking specific guidance on a disciplinary process, understanding their rights and obligations, or considering raising a personal grievance are advised to consult with an employment law specialist. Employers may also benefit from legal advice to ensure their processes are compliant. Free initial advice may be available from Community Law Centres or the Ministry of Business, Innovation and Employment (MBIE) Contact Centre.

Key Resources