Disciplinary

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1st Steps If You Are Called To A Disciplinary Meeting

Keep A Log

Compile Documents

Get Legal Advice

If you have been invited to a disciplinary meeting, it is best to get in touch with a lawyer.

You might be feeling confused about why you need to attend the meeting and stressed about its possible outcome. Employers must act in good faith and give the employee a real opportunity to refute the allegation or mitigate their conduct at a disciplinary meeting. They must also be fair and free from any bias predetermination and give the employee a reasonable time to respond to the invitation. To ensure the employer complies with these good faith requirements, get Resolve Legal to attend the meeting with you and support you through the process.

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Our Case Process

Detailed Planning

We start by establishing the facts, identifying the issue and explaining the legal bits so we can get started on solving your employment problem. We want you to have peace of mind from the beginning of your journey with us.

Consultation

Next, we discuss your expectations and any risks we think you are facing, evaluate all evidence and prepare an action plan so you get the best outcomes. We prepare you for what’s to come and what you can expect.

Settlement

In the last part of our process, we prepare you for attending any meetings and complete the outcome as cleanly and as quickly as we can. We strive to protect our clients and get you the best results.

We can help you identify the employment issue based on the information you have provided us and the likely outcome of the disciplinary meeting.

We can’t determine the exact outcome before having the disciplinary meeting as we will need to hear your employer’s side of the story. However, it’s important to have a support person with you at a disciplinary meeting who can support you during a stressful process and be a witness. Our employment lawyers can be this person for you and ensure that all goes legally and according to requirements.

After the meeting, the employer will be making a decision about what sanctions should be imposed, which can include counselling, warning, suspension and dismissal. If you believe the process was unfair, you can raise a personal grievance, but discussions and negotiations might be better in some cases. Let our friendly team be your partner during this challenging and stressful process!

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Disciplinary Resources

Misconduct
Staff issues are stressful:

Make a plan

Stick to it

Act Well

There are 3 layers to Misconduct in the workplace that may require a disciplinary process and or dismissal.

Performance Issues

Minor Misconduct

Serious Misconduct

Misconduct issues are reduced when you have:

Clear employment agreements

Codes of conduct

Policies and procedures

This guide helps you manage misconduct and disciplinary issues in your workplace safely.

Good Faith Principle

The Good Faith Principle is the underlying principle of the Employment Relations Act 2000.

Good Faith means that all parties to an employment agreement must act:

Honesty

Openly and

Without hidden motives

This basically means:

To act in a kind and respectful manner

Staying professional

Allowing people time and opportunity to discuss their perspectives on things

Process to Follow

In the spirit of good faith, the two things that you must do are:

1. Have a genuine reason to start any disciplinary actions against an employee.

2. Carry out a fair process without bias or predetermination when investigating any allegations.

When you when you are working through the investigation process:

Follow the disciplinary procedures in the;

Employee’s Individual Employment Agreement and;

Your workplace policies

Process

1. Investigate in a procedurally fair way

2. Consult the employee before any big decisions are made

3. Assess whether there are any real issues to address

4. Decide what the probable level of misconduct is:

Poor performance (termination unlikely)

Minor misconduct (termination unlikely)

Serious misconduct (possible termination)

All must be investigated in a procedurally fair way, where the employee is consulted before any big decisions are made.

Types of Misconduct

Serious misconduct is:

When an employee does something that:

1. Undermines the trust of the employer

2. In the course of their work. This could be things such as:

Assault

Bullying

Drug or alcohol use

Theft or fraud

Minor Misconduct is:

When an employee does something at work that is:

1. Not illegal but

2. Considered not acceptable

3. This tends to be:

Unauthorised or unexplained absences

Persistent lateness

Repeated performance issues

Internet misuse

Poor performance is:

When an employee’s performance falls below the required standard of work. Like;

Misuse of sick leave

Failure to follow instructions

Excessive break time, or phone time

Lateness, or leaving without permission

If you are investigating serious misconduct:

You can consider whether suspending the employee with pay would be appropriate

This requires a full consultation process. See the serious misconduct section for further information on how to manage serious misconduct
Serious Misconduct
If an employee has allegedly engaged in serious misconduct; there is a process to follow. You must follow it or a personal grievance will be raised against you and your business and cost you a lot of money (thousands not hundreds).

Process to Follow:

Formally investigate the allegations

1. Interview all the witnesses. Have them provide:

Date and time of the incident

A full description of the alleged behaviour

2. Inform the witnesses that their statements will be provided to the employee being investigated.

The investigation must:

Match the seriousness of the allegation

This may mean an impartial third party may lead the process

Formally advise the employee and invite them to an investigative meeting. It is important to provide the employee with evidence of the allegations. The primary purpose of the investigative meeting – is to allow the employee to respond to the allegations.

To advise the employee, send them an email with:

The allegations clearly set out

The supporting evidence of these allegations (including statements from the witnesses)

Detail the possible outcome

Inform them that no outcome has been predetermined

Inform them that this meeting is to discuss the allegations

Give them an opportunity to provide an explanation or mitigating factors for their alleged behaviour.

Inform them they are entitled to bring a support person

Investigation Meeting

The meeting should be led by a staff member who has authority over the investigation.

Ensure that you:

1. Record the meeting

Got someone to write a transcript

Record it with a tape

Provide both to the employee

2. State the allegations clearly and in full to the employee

3. Go through the evidence provided to them

4. Allow the employee to respond fully

5. Keep an open mind

6. Assess all explanations they may offer objectively

7. Answer all questions honestly

8. Provide a timeline for the process

9. Ask how they would like to receive the preliminary decision:

Face to face

Email

10. Adjourn the meeting once the employee has had a full chance to respond to the allegations

Make your preliminary decision

In good faith:

Provide your employee with your preliminary decision

Ask for feedback before you make your final decision

When making your preliminary decision ask yourself:

1. Are your expectations reasonable?

2. Does your evidence support the allegation?

3. Do you honestly think the employee committed the misconduct?

4. Are there mitigating factors to consider?

Health issues

Family issues

5. Have you taken anything irrelevant into account?

6. Have you treated employees in the same situation?

7. If so, what was the outcome?

8. Did you follow the correct procedure?

9. What alternatives are there to your decision?

After considering these factors – then make the final decision. Inform your employee via their preferred method of communication and set up a meeting if they wish to discuss in person.

Employee Feedback On Preliminary Decision

Employee feedback is vital:

It constitutes part the procedural fairness process

As part of the good faith principle.

Listen to their feedback

Fully consider it

Consider:

The pros of sticking with your preliminary decision

The cons of sticking with your preliminary decision

All the mitigating factors

Ensure your decision making is coming from an objective point of view

Final Decision

When making your final decision consider:

The employee’s feedback

Mitigating factors

Personal circumstances

Severity of the Allegation

Proportionality and consistency

Once you have made your final decision:

1. Write to the employee

7. Outline the final decision

8. Provide reasoning

9. Provide them, details around:

Their final date of employment

Final pay

And how they can return any company propertyc
Constructive Dismissal
What Is Constructive Dismissal?

When an employee resigns because:

They believe the employer breached a term of their employment contract; and

The breach was of sufficient seriousness to force them to resign;

They may have been Constructively Dismissed

The 3 main grounds for constructive dismissal are:

The employer tells the employee – you either resign or I will dismiss you

The employer coerces the employee to resign by actions and conduct deliberately intended to force a resignation

A breach of an implied or express term by the employer leads an employee to resign. (An implied term refers to the employer’s duty not to act in a manner calculated or likely to destroy the trust and confidence of the employer; an express term would be not pay the employee’s wages)

Constructive Dismissal is not:

Inconsiderate conduct by the employer making the employee unhappy or resentful

Impoliteness from the employer (in the absence of unfairness or oppressive conduct)

Frank expression of the employer’s dissatisfaction with the employee’s performance

The employee didn’t like the way the employer directed them on how to perform their job

The Courts use a Two Step Test To Decide Constructive Dismissal

Question 2:

Was the breach sufficiently serious to give rise to a constructive dismissal?

This question is tricky because ‘sufficiently serious misconduct’ cannot be stated with any certainty or precision because the facts in each case are so varied.

Chief Judge Goddard stated: “the breach must be substantial enough to destroy, or at least seriously undermine trust and confidence” …in the employment relationship.

Employer behaviour is:

assessed on an objective basis

compared to what is considered ‘reasonable conduct by a reasonable employer’

Then the Court determines whether your actions were how a fair and reasonable employer could have acted in all the circumstances.

Question 1:

Did the employer breach either an express (written) or implied (unwritten) term of the Employment Contract?

You have a duty to comply with both express and implied terms of the agreement

The breach must be behaviour that is dismissive or repudiatory

Inconsiderate behaviour that makes employees unhappy does not make the test

If the answer to this question is NO, there is no constructive dismissal at this stage.
If the answer is YES, the court will move to question 2.

What are employer obligations?

The onus is on the employee to show constructive dismissal occurred.

This means:

The evidence needs to be strong enough for you to have to answer to it

If the evidence is strong enough, the evidential burden then shifts on to the employer who needs to justify the employee’s dismissal

On the balance of probabilities

Where the court assesses that they are over 50.01% sure

The employer acted accordingly, and that the dismissal was justified Constructive dismissal is quite common, but it is hard to prove.

Reach out to Resolve Legal if You Have Been Called To A Disciplinary Meeting.

You don’t have to go through this challenging time alone. Our legal team will guide you through the process of raising a bullying claim and change your life for the better.

Call Us
021 242 3200

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Disciplinary

1st Steps If You Are Called To A Disciplinary Meeting

Keep A Log

Compile Documents

Get Legal Advice

If you have been invited to a disciplinary meeting, it is best to get in touch with a lawyer.

Our Case Process

Detailed Planning

Consultation

Settlement

We can help you identify the employment issue based on the information you have provided us and the likely outcome of the disciplinary meeting.

Disciplinary Resources

Good Faith Principle

Process to Follow

Types of Misconduct

Process to Follow:

What Is Constructive Dismissal?

The 3 main grounds for constructive dismissal are:

Constructive Dismissal is not:

The Courts use a Two Step Test To Decide Constructive Dismissal

What are employer obligations?

Reach out to Resolve Legal if You Have Been Called To A Disciplinary Meeting.

Call Us
021 242 3200

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Disciplinary

1st Steps If You Are Called To A Disciplinary Meeting

Keep A Log

Compile Documents

Get Legal Advice

If you have been invited to a disciplinary meeting, it is best to get in touch with a lawyer.

Our Case Process

Detailed Planning

Consultation

Settlement

We can help you identify the employment issue based on the information you have provided us and the likely outcome of the disciplinary meeting.

Disciplinary Resources

Reach out to Resolve Legal if You Have Been Called To A Disciplinary Meeting.

Call Us021 242 3200

Employment Dispute Lawyers Which One Is Best for You

Duties and responsibilities of Employers and employees

Redundancy in New Zealand: Your Essential Employer’s Guide

Dismissal from Work: What’s the Next Step?

Call Us
021 242 3200