From time to time it may be necessary to commence disciplinary proceedings against a staff member. The outcome of disciplinary proceedings may range from no further action to be taken through to the possibility of a verbal warning or even summary dismissal.

The employer’s good faith obligations contained in section 4(1A)(c) of the Employment Relations Act require “…an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of his…employee…to provide the employee…(i) access to information, relevant to the continuation of the employee’s employment, about the decision; and (ii) an opportunity to comment on the information to their employer before the decision is made.”

Plainly put, this means that an employer considering disciplinary action needs to ensure that he has given the employee a copy of all information that he is relying on in making the decision, such as evidential documentation.

The employee must be given a genuine opportunity to comment on both the allegations, and the nature of any likely outcome, prior to the decision being made as to the outcome.  The employer must approach disciplinary proceedings with an open mind, and be ready to hear the employee out before making their decision.

In any disciplinary proceedings it is necessary for the employee to be invited to a formal meeting and to be advised that they may have a support person with them.  Notice and detail of the allegations must be given to the employee at this stage so that they are able to prepare.  Documents must also be referred to the employee evidencing the allegations that have been made, if such documentation is to be relied on by the employer.  The employee should be given an opportunity to review that documentation and to seek assistance from a professional legal representative if they choose to do so.  It may be that the initial meeting may have to be rescheduled within reason.  At the meeting the employer should take care to listen carefully and take notes of the responses to the allegations and it is important that no decision is made at the meeting.  Finally a decision can be made and notified to the employee subsequent to receiving the employee’s responses.

This is a very broad outline of the process that must be followed and with more complex cases it may be that there will be need for suspension whilst investigation is taking place and a more robust investigation may be needed, leading to a series of meetings being required with the employee.  It is also important that if summary dismissal or dismissal is being considered then the employee must be advised of this prior to the commencement of the proceedings and must be given an opportunity to comment on dismissal as a remedy and to give any pleas in mitigation prior to a final decision being made by the employer.

At Turner Hopkins we have developed a step by step process guide sheet along with draft sample letters which can be adapted to each proceeding and we are happy to provide these to our employer clients.

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