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employment

The right to respond to allegations of misconduct

Key Takeaway

New Zealand employees have a legal right to respond to allegations of misconduct. This right stems from the statutory good faith obligation requiring employers to provide information, allow a reasonable opportunity to explain, and genuinely consider an employee's response before making a decision. Failing to follow a fair process can lead to an unjustified dismissal or disadvantage.

The Right to Respond to Allegations of Misconduct in New Zealand Employment Law

In New Zealand, an employee facing allegations of misconduct has a fundamental right to respond to those allegations before an employer makes a decision. This right is a cornerstone of fair process in employment law and is grounded in the statutory obligation of good faith [Source: Employment Relations Act 2000, s 4].

What is Good Faith?

Good faith is a statutory obligation under New Zealand employment law where employers and employees must be active and constructive in establishing and maintaining a productive employment relationship [Source: Employment Relations Act 2000, s 4(1A)]. Specifically, this includes the requirement for an employer to provide access to information relevant to the continuation of the employment relationship, to give an employee a reasonable opportunity to comment on information, and to consider the employee's comments [Source: Employment Relations Act 2000, s 4(1A)(c)].

Employer Obligations When Allegations of Misconduct Arise

When an employer becomes aware of potential misconduct – which, in employment law, refers to an employee's behaviour or actions that violate company policy, employment agreement terms, or generally accepted standards of behaviour in the workplace, and which may warrant disciplinary action – they have several obligations stemming from the duty of good faith:

  • Inform the Employee: The employer must clearly inform the employee of the specific allegations of misconduct being made against them [Source: Employment Relations Act 2000, s 4(1A)(c)].
  • Provide Sufficient Information: The employee must be provided with sufficient information and relevant evidence to enable them to understand the case they have to meet [Source: Employment Relations Act 2000, s 4(1A)(c)]. This ensures the employee can prepare an informed response.
  • Give a Reasonable Opportunity to Respond: A reasonable opportunity must be given for the employee to respond to the allegations before a final decision is made [Source: Employment Relations Act 2000, s 4(1A)(c)]. The time period considered 'reasonable' will depend on the complexity and seriousness of the allegations.
  • Consider the Response Fairly: The employer must genuinely consider the employee's explanation or response with an open mind. This means the employer should not have predetermined the outcome before hearing the employee's side [Source: Employment Relations Act 2000, s 4(1A)(c)].
  • Allow for Support: While not explicitly detailed as a separate section in the Employment Relations Act 2000, it is a well-established principle of natural justice and good employment practice that an employee has the right to have a support person or representative present at any meeting where allegations of misconduct are discussed.

Employee Rights in a Misconduct Process

Arising from the employer's obligations, an employee's rights in such a situation include:

  • The right to know the specific allegations being made against them.
  • The right to be provided with the evidence relevant to those allegations.
  • The right to a fair and reasonable amount of time to prepare and present their response.
  • The right to have a support person or representative present during meetings concerning the allegations.
  • The right to have their response genuinely considered by the employer before any decision is made.

Consequences of Failing to Follow a Fair Process

If an employer fails to follow a fair process, including denying an employee their right to respond, any subsequent disciplinary action, including dismissal, may be deemed unjustified dismissal or unjustified disadvantage [Source: Employment Relations Act 2000, s 103A].

  • An unjustified dismissal is a dismissal that a fair and reasonable employer could not have arrived at in all the circumstances at the time the dismissal occurred [Source: Employment Relations Act 2000, s 103A].
  • An unjustified disadvantage is any action by the employer that disadvantages an employee and which a fair and reasonable employer could not have taken [Source: Employment Relations Act 2000, s 103A].

When assessing whether a dismissal or disadvantage was justified, the Employment Relations Authority or Employment Court will consider both whether the employer's actions were what a fair and reasonable employer could do, and how the employer acted. This 'how' includes assessing the procedural fairness, such as whether the employee was given a proper opportunity to respond [Source: Employment Relations Act 2000, s 103A].

When to Seek Independent Legal Advice

Individuals who are facing allegations of misconduct, or believe an employer has not followed a fair process, may find it beneficial to seek independent legal advice. Information and assistance can be obtained from Community Law Centres throughout New Zealand, which offer free legal advice, or by contacting an employment lawyer or advocate.

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