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What is appropriate disciplinary action?

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 […]

Getting the Disciplinary Process Right

We’re doing the hard work for you!  Prior to commencing a disciplinary process with an employee, there are many steps the employer needs to take in order to initiate a thorough and fair disciplinary process.  Getting the prep work wrong can be fatal to the process so we’ve put together a checklist for you to […]

What everyone needs to know about performance management

For organisations to achieve their goals, they must manage people and performance effectively.   Performance management brings together the organisation’s goals and strategies, its human resources policies and practices, and all the elements of good people management and employee communication — integrating them into an organisation-wide process for planning, managing, reviewing, rewarding and developing people […]

Confidentiality during a Disciplinary Process

It is not uncommon to see that when an employee is subjected to a disciplinary investigation process, he or she is advised to keep the matter confidential – or even instructed to keep all information relating to the matter strictly confidential.   This can go as far as restricting the employee to only being able to […]

Parallel Disciplinary Investigations

At times, we come across employee’s representatives who wish to conduct their own investigation into a misconduct matter, in parallel with the employer’s investigation.  This is in an attempt to assist the employee to adequately respond to allegations made against them.  Often, this may include the request to interview other employees and potentially customers, and […]

What to do if you’ve been dismissed

It’s an awful situation to find yourself in, but it actually happens more often than you may think.  Being sacked, fired, or instantly (summarily) dismissed without notice can be a huge shock to your system, and your finances!  Feeling bewildered and not knowing where to turn or what to do is common.  So, to give […]

Recent case: Final warning given 10 months after incident disadvantaged employee

When a disciplinary investigation takes a long time to complete, the employer should take into consideration the length of time that has passed when deciding on an appropriate outcome. In Hyland v Air New Zealand [2013] NZERA Auckland 108, a flight attendant who, after being woken roughly from sleep shook the person who woke her […]

Recent case: Misconduct outside work justifies dismissal

Misconduct outside work may provide justification for the dismissal of an employee if the misconduct has the potential to damage the employer’s business in some way. The conduct may be incompatible with the employee’s duties at work or it may undermine the trust and confidence that is necessary between employer and employee (Smith v The […]

“Without prejudice” (off the record) discussions risky

Blakely v ACM New Zealand Ltd [2013] NZERA Christchurch 9 provides a textbook example of how not to initiate a “without prejudice” discussion about termination of employment. In that case, an employer was dissatisfied with the performance of one of its managers and resolved to dismiss her. The employer did not advise the employee about its […]

Raising a Personal Grievance

An employee must raise a personal grievance with his or her employer within the period of 90 days from the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised […]

Disciplinary Reminders

When you’re going through a disciplinary process with an employee, it’s important that you get the basics right, and follow the correct process.  Here’s a reminder of the key points of a disciplinary process: There are two parts which are as important as each other – substantive reasoning and procedural    fairness Always check your employment […]

Employee has no fundamental right to question complainant

In a disciplinary investigation an employee has an absolute right to know exactly what allegations have been made against him or her but the employee has no absolute right to question the person who has made the allegations. In McKellow v Transportation Auckland Corporation Ltd [2012] NZERA Auckland 191 the Employment Relations Authority said that […]

Resignation during a formal process

If an employee tenders his/her resignation during a formal process (disciplinary/investigation etc) it is important that the employer follows the correct procedure to ensure that the Company is not exposed to the risk of a personal grievance for constructive dismissal. Disciplinary procedures or investigations can be very stressful for employees and as a result they […]