Serious Business: What Constitutes Serious Misconduct Under NZ Employment Law?

Serious misconduct is one of the few situations where an employer may be justified in dismissing an employee immediately—but only if a fair process is followed. While not every mistake or bad behaviour amounts to serious misconduct, certain serious breaches of trust can warrant instant dismissal.  So, what exactly is serious misconduct, and how does New Zealand employment law define it?

Serious misconduct is when an employee’s behaviour has undermined or destroyed their employer’s trust in them and impacted the employee’s ability to do their job.  It is so severe that the employer may no longer be able to keep the employee in the role, even for the duration of a notice period. Serious misconduct usually involves the employee acting deliberately - however, there may be cases where an employee acts so carelessly that it amounts to serious misconduct. Unlike misconduct, which might result in a warning, serious misconduct can justify summary (immediate) dismissal. However, an employer must follow a fair disciplinary process before making this decision.

While employment law doesn’t provide a strict list, common examples of serious misconduct include:

Theft or Fraud – Stealing company property, misusing company funds, or falsifying documents.

Violence or Threatening Behaviour – Physically attacking a colleague, making violent threats, or intimidating others.

Serious Breach of Health & Safety – Endangering others by ignoring safety protocols or working under the influence of drugs or alcohol.

Harassment or Discrimination – Sexual harassment, racial abuse, or other unlawful discrimination.

Serious Insubordination – Refusing lawful instructions in a way that damages the employer’s ability to operate.

Misuse of Company Property – Accessing or distributing inappropriate material using work devices or email accounts.

Serious Breach of Confidentiality – Leaking sensitive company or customer information without permission.

Every workplace is different, so employment agreements and workplace policies often outline specific behaviours that may be considered serious misconduct.

Even if an employee commits serious misconduct, an employer cannot dismiss them on the spot without following due process. Natural justice principles apply, meaning:

• The employee must be informed of the alleged misconduct.

• A fair investigation must be conducted.

• The employee must be given a chance to respond.

• The employer must genuinely consider the response before making a decision.

Failing to follow this process can lead to a personal grievance claim for unjustified dismissal, even if the misconduct was serious.

Serious misconduct can justify immediate dismissal but only if an employer follows a fair process. Employees who believe they’ve been unfairly dismissed should seek legal advice quickly to explore their options.  If you’ve been accused of serious misconduct or dismissed unfairly, get in touch with an expert.  mathewswalker.co.nz | 0800 612 355

---

Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.