How to discipline an employee in New Zealand

Introduction

An employer taking disciplinary action against an employee must ensure:

• that the action taken is justified, and
• that it is carried out in a manner that is procedurally fair

Relations between employers and employees are governed by the New Zealand EMPLOYMENT RELATIONS ACT 2000, which came into force on 1 October 2000. The Act requires employers and employees to act in good faith in dealing with each other; this duty will clearly apply to an employer taking disciplinary action against an employee.

The Employment Relations Service in the Department of Labour can provide information and mediation services to help deal with employment problems. Contact them on 0800 800 863.

The steps that must be followed

There are a number of steps that an employer must take to ensure that any disciplinary action is justified and is carried out in a way that is procedurally fair:

• The investigation. Carry out a full investigation into the alleged behaviour. This can include taking statements from witnesses.
• Inform the employee of the allegations. When you have a clear and precise understanding of what the allegations are, the employee should be informed about the exact nature of the allegations and, where appropriate, that dismissal is a possible outcome of the disciplinary process.
• The employee's right to a fair hearing. The employee should be given the opportunity to respond to the allegations; in other words, the employee must be given a fair hearing. It is critical that the employer does not form a conclusion about the allegations before the employee has had a chance to be heard.
• The right to a support person. The employee is entitled to have a support person present when he or she is responding to the allegations; this could be a lawyer or a union representative. The employee should be informed of this right and given the opportunity to arrange for a support person to attend.
• Inform the employee of the process. The employee should also be informed precisely about the different steps of the process that the employer is following.
• The action taken. After hearing the employee's side of the story, the employer should decide what action, if any, to take. The action taken must be fair. It must also be in accordance with the terms of the employment contract between the employer and the employee.

Warnings

If you decide to give the employee a warning, you should outline what the employee must do to improve his or her performance and give the employee a chance to do so. If appropriate, you should give the employee assistance in this.

Except where summary dismissal is justified, the accepted procedure is usually to first give an oral warning, then a formal written warning, then a final written warning, and then, if necessary, dismissal.

If the employee is a new employee on a period of probation or trial, the requirements of procedural fairness apply just as if he or she were a permanent employee.

Dismissal

If the employer intends to dismiss the employee there are special considerations to take into account: see How to dismiss an employee.

Personal grievances by employees in response to disciplinary action

An employee can lodge a personal grievance claim against an employer who has issued a warning, changed an employment condition or dismissed the employee, if the action taken was unjustifiable or was carried out in a way that was procedurally unfair. The test of whether the action was justifiable or the process was fair is an objective one - namely, whether it meets the standard of what a fair and reasonable employer would have done.

If successful, the employee can be awarded damages for lost wages as well as for distress. See How to defend a personal grievance claim brought by an employee.

The New Zealand Employment website has additional articles on the Disciplinary Process.
 

Other New Zealand Employment Law resources

• The New Zealand Government website Employment is an additional useful guide.
   
• The NZ Employment Relations Authority assists you further seek assistance in resolving employment related issues. It is an independent body.
   
• The NZ Employment Court allows you to challenge a decision made by the Employment Relations Authority.
   
• The NZ Human Rights Review Tribunal assists with issues of human rights and privacy at work.
   
• The NZ Employment Relations Authority has a database of previous cases for review.
   
• The NZ Government website Employment has a free tool for creating employment agreements - help yourself.

Cautionary Notes

• A personal grievance claim brought by an employee can be very costly to an employer both in damages and legal fees. It is therefore critical that employers have legal advice at every stage of the disciplinary process. Each situation is different and the way the guidelines set out above apply can vary.