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The Disciplinary Minefield

This article was written by Graeme Riach and was first published in Canterbury Build Magazine August 2015 issue.

Employment decisions are always made with the best of intentions but regrettably things can go wrong and problems do arise in the course of the employment relationship. It is in this area that the statutory overlay and decided caselaw can impact considerably on the strict terms of the written employment agreement. It is vital therefore that employers either understand or, at the time take advice on, the appropriate processes to be adopted for the situation. Sometimes the employment agreement will set out in detail a process for dealing with poor performance or misconduct and, if so, that process must be followed to the letter – unless it is inconsistent with the established law. For poor performance, the process typically requires meetings with the employee at which the areas of concern are discussed (with appropriate specifics) and the employee is given reasonable opportunities to improve. If satisfactory improvements are not made within the time given, then a further meeting or meetings are held and warnings (verbal or written) may be given.

Before the employee is subjected to any disciplinary measures such as warnings or ultimately dismissal, they should be advised of their right to have a representative present with them at the meeting in question. For performance issues, it is only after appropriate warnings and opportunities to improve have been given, that the employer may consider dismissal.

In cases of misconduct, the process to be adopted depends on the severity or gravity of the conduct in question. For lesser types of misconduct, the procedure involving warnings may be appropriate, again with the allegations being clearly set out and an opportunity to respond given to the employee. For serious misconduct (examples being theft, assault, harassment of other staff or other conduct which goes to the heart of the employment relationship) summary or immediate dismissal may be the outcome. Even then however, it is necessary to first meet with the employee having given advance notice of the allegations, allow the employee an opportunity to respond with an explanation (with the right to a legal representative) and, if the conduct is found proven, to make submissions on the outcome.

For a dismissal to be upheld as justified, the employer’s actions must reflect what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred. It is both substance (was the conduct serious enough to justify dismissal?) and process (did the employer treat the employee fairly throughout?) that are scrutinised.

The moral is – get advice before disciplining staff!

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