Has My Disciplinary Process Been Fair And Reasonable?

Being told your employer has concerns about your behaviour at work can be stressful.  Your employer cannot simply decide you have done something wrong and discipline or dismiss you. In New Zealand, employers must follow a fair and reasonable process before making decisions that could affect your employment.  Understanding what that process should look like can help you identify when your employer is doing the right thing, and when they are not.

The employment relationship in New Zealand is based on good faith. The Employment Relations Act 2000 requires both employers and employees to deal with each other honestly, openly and fairly. Employers must also act as a fair and reasonable employer could in the circumstances.

A fair process is designed to:

• Make sure all the relevant facts are gathered.

• Give you an opportunity to explain your side of the story.

• Allow your employer to make an informed decision rather than jumping to conclusions.

• Protect both parties if the matter later ends up before the Employment Relations Authority.

Even if your employer genuinely believes there is a problem, they can still breach the law if they fail to follow a fair process.

A fair process is generally required whenever an employer is considering making a decision that could negatively affect your employment.  This commonly includes:

• Performance management.

• Misconduct allegations.

• Serious misconduct allegations.

• Bullying or harassment complaints.

• Attendance concerns.

• Medical incapacity processes.

• Drug or alcohol issues.

• Redundancy consultations.

• Changes to your role.

• Final written warnings.

• Dismissal.

The more serious the possible outcome, the more careful the process usually needs to be.

What Does a Fair Process Look Like?

While every situation is different, there are some key steps that most fair processes have in common.

1. You should be told what the concerns are.

Your employer should clearly explain:

• what they believe has happened,

• when it happened,

• why it is a concern,

• what policies or expectations may have been breached, and

• what possible outcomes are being considered.

  
  

You should not be left guessing why you are in a meeting.  If the allegations are vague or constantly changing, that can be a warning sign that the process is not being handled properly.

2. You should receive the information your employer is relying on.

If your employer has documents, emails, CCTV footage, witness statements or other evidence, you should usually be given access to it before being asked to respond.  You cannot properly answer allegations if you have not seen the evidence.  There may occasionally be reasons why some information cannot be disclosed, but in most disciplinary situations you should be given enough information to understand the case against you.

3. You should have reasonable time to prepare.

Your employer should not expect you to immediately respond to serious allegations.  You should usually be given enough time to read the information, prepare your response, obtain advice, and arrange a support person or representative. Being called into a meeting without notice and expected to answer complex allegations immediately is often unfair.

4. You should be told you can bring a support person or representative.

A fair employer should advise you that you may bring someone with you.

This might be a friend, a family member, a work colleague, a union delegate, or an employment advocate. Having support can make a significant difference, particularly where dismissal is a possible outcome.

5. Your employer should genuinely listen.

One of the most important parts of any fair process is that your employer keeps an open mind.

The meeting should not simply be an opportunity to tell you what they have already decided. They should ask questions, listen carefully, clarify facts, consider your explanation, and investigate anything new that comes to light. If your employer has already decided the outcome before hearing from you, the process is unlikely to be fair.

6. A proper investigation should take place.

Where facts are disputed, employers should investigate before making decisions. This may include

interviewing witnesses, reviewing documents, checking electronic records, considering alternative explanations, and verifying evidence. An employer should not simply accept one person's version of events without considering the other side.

7. Your employer should consider all relevant circumstances.

Every situation is different. A fair employer should consider matters such as:

• your explanation,

• your length of service,

• previous disciplinary history,

• whether training was adequate,

• whether expectations were clear, or

• whether similar situations have been treated consistently.

  
  

These factors can significantly affect what outcome is reasonable.

8. The outcome should match the seriousness of the issue.

Even if misconduct is established, dismissal is not always justified. A fair employer should consider whether coaching or additional training is needed, a warning is sufficient, a performance improvement plan would resolve the issue, or dismissal is genuinely necessary. The punishment should fit the circumstances.

What Are the Red Flags That the Process May Not Be Fair?

Some warning signs appear regularly in employment disputes. These include:

• You are suspended without good reason.

• You are told to attend a meeting with little or no notice.

• You are refused a support person.

• The allegations are unclear.

• Evidence is withheld.

• Important witnesses are ignored.

• The employer interrupts or refuses to listen.

• The decision appears to have already been made.

• You are pressured to resign.

• Your employer changes the allegations during the process.

• Similar conduct has been treated differently for other employees.

• You are disciplined before the investigation has finished.

One red flag alone does not necessarily make the process unfair, but several together may indicate serious procedural problems.

Can an Employer Make Mistakes?

Yes.  Employers do not have to conduct a perfect process.  The law generally asks whether the employer acted as a fair and reasonable employer could have acted in the circumstances.  Minor errors may not invalidate the process.  However, where mistakes prevent you from properly responding or significantly affect the outcome, they may make the process unfair.

What Should I Do During the Process?

If your employer raises concerns, try to remain calm.  Carefully read all correspondence regarding allegations and process and ask questions if something is unclear.  Request copies of any documents relevant to the issue and keep a copy of all correspondence regarding the process. Take your time to prepare before attending any meetings and bring a support person or representative if appropriate.  

When Should I Get Legal Advice?

Not every workplace issue requires professional help.  However, it may be worthwhile obtaining advice if dismissal is being considered, you have been suspended, or the allegations involve serious misconduct.  If at any time you believe the investigation is biased or your employer refuses to provide relevant information you may want to seek legal advice, particularly if you think your employer has already decided the outcome or they are pressuring you to resign.  Early advice can often help prevent mistakes before they become much harder to fix.

What Happens if the Process Wasn't Fair?

If your employer fails to follow a fair and reasonable process, you may have grounds to raise a personal grievance.  Depending on the circumstances, available remedies may include:

• reimbursement of lost wages

• compensation for hurt and humiliation

• reinstatement in some cases

• removal of disciplinary warnings

• recommendations about future conduct.

Each case depends on its own facts, and obtaining advice early can help you understand your options.

FAQs

Can my employer dismiss me at the first meeting?

Usually not. In most cases your employer should first investigate the concerns, hear your response and genuinely consider what you say before making any decision.

Can I refuse to attend a disciplinary meeting?

It is generally better to attend. If you need more time to prepare or arrange a representative, ask for a reasonable postponement rather than refusing altogether.

Can I have a lawyer or employment advocate with me?

Yes. You are generally entitled to have a support person or representative attend meetings with you.

Does my employer have to show me the evidence?

Usually yes. You should normally receive enough information to understand the allegations and respond properly.

Can my employer suspend me during an investigation?

Sometimes. However, suspension should only occur where it is genuinely necessary, and employers should usually consult with you before making that decision.

What if I think my employer has already made up their mind?

This can be a significant warning sign that the process is not fair. If the outcome appears predetermined, you should consider obtaining independent employment advice.

Can I raise a personal grievance if the process wasn't fair?

Potentially yes. Even where some concerns are genuine, an employer who fails to follow a fair and reasonable process may still face a personal grievance.

How early should I seek legal advice?

The earlier the better if your job may be at risk. Obtaining advice before important meetings often provides more options than waiting until after a decision has already been made.

No one enjoys being told their employer has concerns about their work.  However, New Zealand employment law recognises that people deserve to be treated fairly before important decisions are made.  A good employer should investigate properly, provide relevant information, genuinely listen to your explanation and keep an open mind before reaching any conclusions.

 Understanding what a fair and reasonable process should look like can help you protect your rights and make informed decisions throughout the process.  If you feel the process is being rushed, important information is being withheld or the outcome appears predetermined, it may be time to seek independent advice.  Contact Mathews Walker today for a free consultation.  MathewsWalker.co.nz | 0800 612 355

Contact Mathews Walker

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