06.08.2015

The disciplinary dance – don’t miss a step!

Once an employer has investigated allegations of misconduct, and reached the conclusion that yes, the employee has indeed done what they were accused of, it is tempting to race to the finish line, and just issue the warning or dismissal.  However, employers need to take a breath, and make sure that the employee gets an opportunity to comment on the proposed sanction before it is decided.

We like to think of it as akin to the criminal process – a person is accused of a crime, appears in court, and the judge or jury decide whether he or she has indeed committed that crime.  Once that decision is made, there is a separate sentencing hearing, where aggravating and mitigating factors are weighed, and a punishment or sanction is determined.  The same should apply in an employment process.

We know that in a redundancy situation, the employer must first propose, and consult with employee/s about the decision to restructure the business.  Once that decision is made, the employer must consult about the implementation – whether the restructure will result in the termination of an employee’s employment , selection criteria if applicable, whether there are any alternatives to termination, and if not, matters such as notice, handover, CV assistance, etc.  The second part is just as important as the first.

The same applies in a disciplinary situation (and indeed in any situation where the employer is considering a decision that may impact on an employee’s employment – for example, a formal performance management process).  The employee must be given an opportunity not only to comment on whether they have committed the misconduct, but on the consequences of that.  The process should (in almost all circumstances) run like this:

  • Allegations of misconduct/serious misconduct put to employee.  All information provided, and employee advised of possible consequences of the process.
  • Employee responds to allegations.
  • Employer considers employee’s responses, investigates further if necessary, reaches conclusion as to whether employee has committed misconduct/serious misconduct.
  • Employee advised that a decision has been made on the allegations of misconduct/serious misconduct, and the employer is considering what sanction to impose.  Employee invited to provide their views on sanction.
  • Employee gives feedback on the proposed sanction – mitigating factors and anything they would like employer to take into account in deciding on the appropriate sanction.
  • Employer considers the feedback and all the circumstances, and decides on the appropriate sanction.

In this way, the employee gets the opportunity to, for example, admit that they have committed the misconduct (at the first stage) but provide mitigating factors at the second stage that could impact on the sanction the employer will impose.  The ‘sentencing’ phase is the employee’s opportunity to raise matters such as previous good service, any reasons why the employee may have committed the misconduct, parity with other employees, stressors, etc, that have nothing to do with the initial allegations.  A fair and reasonable employer will take all of these matters into account in deciding on what action is appropriate in all the circumstances. To put this in its context, deciding if an employee has committed misconduct is critical, but nothing is more important to the continuation of an employee’s employment than the actual decision whether or not to dismiss.

A word of warning from the Chief Judge of the Employment Court, who has made comment in a recent case involving Bay of Islands College: employers must take care not to predetermine the outcome at the second stage.  In this case, the employer, in reaching its decisions on the conduct, made comments such as “I, and the Board have concluded that it is no longer possible for you to manage the staff and lead the school” and “[t]here is now an irreconcilable breakdown in trust and confidence”.    The employee was then invited to provide feedback on the employer’s proposed sanction of dismissal.  Despite the ostensible opportunity to comment on the proposed sanction, the Court’s view was that employer’s comments clearly indicate the decision on the outcome was all but made.  Comments such as this at the ‘decision on conduct’ stage mean a very real risk that the outcome is predetermined, and the employer’s action is found to be unjustified.

If you have any questions about the process, need help with your dance steps, or need assistance with any other aspect of employment law, feel free to contact us.

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

Related Articles / Insights & Opinion

Deciding to Wind Up? Observations on winding-up a trust from a recent High Court case
A trust can be a hassle and expensive to maintain.  So, it is not unusual for clients to reflect on whether a trust should be maintained. When settlors, Bert and Diana Queenin, decided to wind up the...
24.03.2025 Posted in Private Wealth
Mediation wide BW
Employment Law’s Dispute Resolution Process – Mediation
Navigating the dispute resolution process in the employment jurisdiction can be tricky. This article aims to spell out the key considerations for those involved in or contemplating mediation, which is...
24.03.2025 Posted in Employment
empty wallet finance concept
Amendment to the Crimes Act 1961: Intentionally not paying employees their wages now deemed theft
An amendment to the Crimes Act 1961 (Crimes Act) – the Crimes (Theft by Employer) Amendment Bill has been passed by Parliament and received Royal assent. It is now an enforceable provision of th...
14.03.2025 Posted in Employment
Time’s Up: Late Redelivery and the Assessment of Damages in Hapag Lloyd AG v Skyros Maritime Corporation and Hapag Lloyd AG v Agios Minas Shipping Company
The English Commercial Court gave an instructive judgment on the assessment of damages in Hapag Lloyd AG v Skyros Maritime Corporation and Hapag Lloyd AG v Agios Minas Shipping Company; an appeal brou...
11.03.2025 Posted in Trade and Transport
Team Hands in small
Cartel conduct: Do not pass “GO”, go directly to jail
Until 8 April 2021, cartel conduct was punishable only by civil penalty in New Zealand.  In R v Kumar [2024] NZHC 3955 the High Court imposed the first criminal convictions and sentences for cartel c...
06.03.2025 Posted in Construction & Disputes
Employment
2025 Insights: Proposed Legislative Changes and Employment Team Update
Team update and proposed legislative change – hello from the Hesketh Henry Employment Law Team 2025. Click here
20.02.2025
photo  dbe
When Sweet Turns Sour: The Costly Consequences of Contamination
The New Zealand Sugar Company (NZSC), trading as Chelsea Sugar, recently found itself in hot water after being fined nearly $149,500 by the District Court due to a prosecution brought by the Ministry ...
19.02.2025 Posted in Insurance & Trade and Transport
SEND AN ENQUIRY
Send us an enquiry

For expert legal advice, please complete the form below or call us on (09) 375 8700.