Posted on: Aug 05, 2015

This is one of the most difficult aspects of a disciplinary process, and is the part that is most closely scrutinised by the Authority or the Court.  In order for any disciplinary action to be justifiable in terms of the Employment Relations Act 2000, the outcome needs to be considered consistent with “what a fair and reasonable employer could do in all the circumstances” – see the test of justification under s 103A.

Disciplinary action is not an inevitable outcome of a disciplinary meeting. An employer might decide that the complaint or allegation is unfounded, or not serious enough to warrant further action. The employee might offer an apology, or a promise not to repeat the misconduct — and the incident can be concluded without formal disciplinary action.

Before deciding whether to take disciplinary action, or what action might be appropriate, carefully consider:

  • all the information put before the meeting
  • in particular, the employee’s explanations
  • the employee’s work and performance record – has the employee received any prior warnings?
  • how incidents or behaviour like this have been dealt with on previous occasions within the organisation
  • what has happened as a result of the employee’s misconduct (i.e. the consequences)
  • whether employees — and particularly this employee — have been told specifically that behaviour of this kind is not acceptable

Always be sure to follow the employment agreement and any employer policies in determining the appropriate level of disciplinary action to take.  For less serious matters there may be a set progressive process that should be adhered to, e.g. first a verbal warning, then a final written warning, then dismissal.  Keep in mind that most disciplinary matters will be of the less-serious nature.

Serious misconduct, for which summary dismissal may result, demands a high threshold to be met. Serious misconduct only usually occurs when the employee’s misconduct is deliberate, grossly negligent, or of a sufficiently serious nature that it irreparably damages the trust and confidence in the employment relationship.

If you’re ever in doubt about the disciplinary process or what level of action to take, contact our team to assist.  We’re doing this every day, across a variety of industries, so needless to say we’ve got a good handle on what’s appropriate in the circumstances.


This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.