The Disciplinary Process in NZ.
What to Expect Regarding Your Duties as an Employer.
If you are an employer who has found themselves in a situation where disciplinary action may need to be taken against an employee for a breach of company rules, poor performance or as a result of a serious incident, it is your duty to ensure that you are familiar with the correct procedure to be implemented.
Without this knowledge, you run the risk of handling the disciplinary process incorrectly and opening yourself up to liability. A employee disciplinary consultant at Russell Drake Consulting can assist you in working through the legally compliant steps or, in certain cases, potentially resolving situations without the need to move forward with the disciplinary process at all.
Seek proactive advice today about the disciplinary process requirements.
Does disciplinary action mean ‘fired’?
Disciplinary action, in itself, does not refer to the direct termination of employment. If the reason for the disciplinary action is deemed to be a potentially dismissable offence, then that employee losing their job could be a natural consequence of the disciplinary process. Disciplinary action is used to essentially provide the employee with the opportunity to provide their explanations with respect to the allegations before you, as their employer, make any final decisions. The outcome of a disciplinary process may include the provision of written warnings or a final warning, noting the potential consequences if the breach is not corrected in the future, it may result in dismissal.
If you are seeking to ‘fire’ an employee, that is, terminate or end their employment agreement, proper steps must be taken to ensure the process is fair for both parties and is consistent with employment law obligations, in order to mitigate the risk of a personal grievance. Disciplinary action may not be the correct process for all situations, so talk to our employee disciplinary expert for your options before making any moves.
If there has been serious misconduct in the workplace, then you may require a more thorough investigation and a different set of steps, such as standing down or suspending the employee until an investigation has been concluded. Serious misconduct can, but not always, lead to the termination of employment depending on the severity, harm caused and consequences for the business or its other employees.
Discuss your specific situation with our experts today for the best course of action.
What does disciplinary action mean - what counts as disciplinary action?
Common disciplinary actions include giving verbal and/or written warnings. In severe instances, this may result in the termination of employment. Other actions may involve:
- Counselling and rehabilitation
- Restricting privileges such as overtime
- Mandatory course attendance to prevent future errors
- Reassignment to alternative duties
- Demotion from their current role
Disciplinary actions must be reasonable, proportionate and fair to each situation. You must have a valid reason for initiating disciplinary measures against an employee and be able to provide justification or proof to support any allegations. As the employer, you must adhere to a fair process before reaching an outcome decision.
Failure to meet these criteria may result in the employee lodging a personal grievance against you or the business.
How disciplinary procedures work.
To begin the disciplinary process, the employee(s) in question must be addressed via a letter stating the alleged breach or problem and the information you hold about the incident or behaviour. This letter must include enough information for the employee to understand what is alleged and what is then required of them.
The disciplinary investigation.
Depending on the circumstances, you may need to consider implementing an investigation prior to initiating any disciplinary action against an employee. The extent of the investigation will depend on factors such as the nature and severity of the concerns and the potential consequences for the employee.
For less severe issues, a preliminary investigation process, less formal than a full investigation, may be sufficient.
Organising a disciplinary meeting in NZ.
All disciplinary meetings should be scheduled at least two to three working days before they commence from the date the employee receives the letter for adequate preparation time.
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During the meeting, a designated decision-maker from your staff should preside. Present the complete allegations, concerns, and investigation results to the employee, allowing both parties an opportunity for discussion. Provide the employee and/or their representative a chance to respond to the concerns. Following the employee’s response, conclude the meeting, allowing the decision-maker time to assess all information before reaching a decision.
The decision-maker, whether it is you or a superior, must refrain from deciding on any action before hearing the employee and should not immediately provide a pre-typed letter outlining the decision after their comments.
If you wish to introduce a new issue, you must communicate it in writing to the employee, postponing the meeting to allow sufficient time for the employee to address the new matters.
Maintain a written record of all discussions and meetings.
This meeting may result in the requirement for further investigations and a second formal disciplinary meeting, so it is important to wait until you have all of the information before making any judgements.
Depending on the level of investigation that is required and the evidence that needs to be gathered, as well as the severity of the problem – the disciplinary process can vary greatly in duration. Willing participants in the process also allow it to move more quickly and steadily, so when starting the process, you may want to consider a flexible time period where the problem could remain unresolved. For a thorough and compliant process, no steps should be skipped, and no parts should be rushed.
The 3-step disciplinary process only applies to very straightforward cases, and it should not be assumed that your case will be from the offset. The major 3 steps involved in the disciplinary process are the following:
Notification meeting or letter, where you formally present your concerns to the employee.
- The disciplinary meeting or response meeting. This is where the employee gets to state their side of the story with proper preparation and a support person present.
The outcome meeting is the last step after investigations and all the relevant middle steps are completed.
Obviously, this is a rough guide, and no two cases are the same. Therefore, we encourage you to get in touch with our employee disciplinary expert to discuss the situation and your options for proceeding into the disciplinary process, if appropriate.
If you are seeking to end the employment agreement, it is advisable to seek expert counsel with the team at Russell Drake to avoid liability and seek outcomes the correct way.