Helping employers with the disciplinary process

We are very experienced in conducting disciplinary processes for our employer clients. Any serious breach of an employer’s trust and confidence can justify summary termination. The most common justification is where the employer can point to dishonesty. It is very important to note, however, that every disciplinary process has to be done the right way. The law is very process driven.

As employment lawyers, the most frequent mistake we see employers make is failing to follow a good process. A tightly run process to address issues with employees significantly reduces the prospects of success for any grievance and even the likelihood it will be raised in the first place. The Employment Relations Act 2000 sets some minimum tests of fairness for an employer’s process requiring that:

  • the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee
  • the employer raised their concerns with the employee before dismissing or taking action against the employee
  • the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee
  • the employer genuinely considered the employee’s explanation in relation to the allegations against the employee before dismissing or taking action against the employee.

If you don’t have a good process to meet these criteria, you make your business vulnerable to no-win no-fee advocates. Generally, these advocates accept and run grievances wherever there are discernible problems with procedure. This is because they can almost be assured of at least a small settlement from the employer in order to obtain a fee.

We are very experienced in running robust processes that discourage grievances. The key is to document and run a process in such a way that, when the documentation is received by an advocate or lawyer, their advice is that there are no obvious vulnerabilities. This can often lead to no- win no-fee advocates declining to take the employees’ case.

Depending on the employer’s level of experience with disciplinary processes, we can take a number of approaches. Most frequently, employers want us to take the lead and free them to run their business. It is also common for us to act as a sounding board or to check the employer’s approach and correspondence.

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