Is it Unfair Dismissal if I am Fired for Making One Mistake?

When you work in New Zealand, you’re covered by the Employment Relations Act 2000 (ERA). That law says that if you are sacked, it must be both substantively and procedurally fair.  One big question many clients ask Mathews Walker advocates is whether they can really be dismissed for making just one single mistake?

The answer is... sometimes. You can be dismissed for a single mistake but only in very serious cases, and only if the whole package of reason and process is fair. Otherwise you might have grounds to file a personal grievance for unjustifiable dismissal and Mathews Walker is here to help.

What does the law require for a dismissal?

Your employer must have a valid reason such as serious misconduct or poor performance, and must follow a fair process.   This means:

• They must tell you why they are thinking of dismissing you before they do it,

• They should let you respond to any allegations and conduct a proper investigation, and

• They should act reasonably from the perspective of what a fair and reasonable employer could do in that situation. 

If you are dismissed and you believe the reason was not valid, or the process was unfair, or both, you may raise a personal grievance for unjustifiable dismissal.

So is one mistake enough to get sacked?

The answer is sometimes yes but only if the mistake is serious. If the mistake is more minor, immediate dismissal may be unfair. Here are some of the key things to consider:

• How serious was the mistake you made? Did it break a major rule, impact safety, cost a lot of money to the business, or damage trust between you and your employer? If yes, then an employer may be justified in dismissing you.

• What was the context? Was it the first time you made a mistake and had you received any warnings beforehand? Did the employer give you training or support in order to avoid the mistake made?

• Was the employer’s response proportional? Was the dismissal a reasonable reaction in all the circumstances?  Would a less serious response have been more reasonable?

• Was the process undertaken fair? Was there an investigation where the allegations were explained and you were given an opportunity to respond?

If one or more of these things is not satisfied, then a dismissal for a single mistake might be deemed unjustifiable or unfair.

What is proportionality and how does it apply?

In employment law, proportionality means making sure that the dismissal is not heavier than what is appropriate in response to the mistake. It involves asking things like:

• Is the reason for the dismissal legitimate?

• Is the dismissal necessary? Could a lesser response work?

• Is the action balanced in terms of its harm versus the interests of the employer?

In simple terms, if someone makes a small slip, you’d expect a small response such as a warning and offer of support or training, rather than the more serious dismissal. If the mistake is huge or repeated, then dismissal may be appropriate.

While New Zealand law doesn’t always use the word “proportionality” in every case, the underlying concept is embedded in the test for justifiable dismissal. Under section 103A of the ERA the test is whether the employer’s actions were “what a fair and reasonable employer could have done in all the circumstances”.  So in practice, when a single mistake happens, the employer must show that given all the facts it was reasonable to dismiss the employee rather than use a lesser step.

FAQs

Does “one mistake” always protect me from being dismissed? No. It depends on how serious the mistake was, how it impacted the business, and how the employer treated you. Even a first offence can lead to dismissal if it’s very serious.

My employer didn’t warn me before dismissing me - is that unfair? Possibly. Employers aren’t always required to give warnings (for very severe misconduct) but they must act as a fair and reasonable employer. If there is no investigation or chance to respond, dismissal may be unjustifiable.

What if I made a mistake but I was never given training or told what I was supposed to do? That can be a strong factor in your favour. Employers have an obligation to set clear expectations and give you reasonable support. If they failed, dismissing you may be unfair.

If I’m dismissed for a mistake, how long do I have to claim unfair dismissal? For unjustifiable dismissal claims, generally you must raise the grievance within 90 days of the dismissal.  I you wait longer, you may lose your right to challenge.

What remedies might I get if my dismissal was unjustifiable?If your claim succeeds, you may be awarded compensation for lost wages and/or hurt and humiliation, and in some cases reinstatement.  However, remedies may be reduced if your 

A single mistake at work does not automatically allow an employer to dismiss you.  The dismissal must be fair, reasonable, and proportionate.

If you are in doubt about whether your dismissal was justified, it’s wise to take prompt advice, gather any documents and evidence, and consider raising a personal grievance.  If you have been dismissed and your feel like it has been an overreaction to your actions or behaviour, get in touch for a free consultation and see if you have grounds for a personal grievance. MathewsWalker.co.nz | 0800 612 355

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