UNFAIR OR UNJUSTIFIED DISMISSAL.
What is the disciplinary process and how can it lead to unjustified dismissal or a unfair action?
A disciplinary process is a process the employer will engage in when they believe a worker or employee has been involved in actions that involve misconduct of some kind.
Quite often the process, and the outcome can be unjustifiable. Particullary if the process and the information used were lead to a outcome that does not comply with the legislative requirements.
When is a disciplinary outcome unjustifiable?
A dismissal should come from a investigation and disciplinary process.
The disciplinary and investigation process should be fair and balanced, follow the legislative requirements, and overall feel like what was done, and how it was done, was fair and reasonable.
If not, it is likely you were unjustifiably dismissed. There are many reasons why a dismissal is unjustified.
If an employer wants to discipline an employee for misconduct, they must have a good reason for taking the action.
Employers must follow the principles of a fair process.
Usually, processes for disciplinary action, including warnings or dismissal will be written in the employment agreement or in workplace policies. These processes should be followed. Where there is no agreed procedure to be followed, employers should use a careful, thorough, objective, and fair process.
If an employee is not doing their job, or performing poorly in relation to their employment agreement, this may be a performance issue (sometimes called poor performance). There are both informal and formal processes to manage performance issues, which is different from the disciplinary process explained on this page.
When will a dismissal be unjustified?
A dismissal is unjustified when the dismissal of an employee by an employer, or how the dismissal was done, was not what a fair and reasonable employer could have done in all of the circumstances.
What are some common mistakes employer make when carrying out a disciplinary process?
Some common mistakes made by employers when carrying out a disciplinary or dismissal process are:
Making a decision before a proper investigation.
Not explaining the process that will be followed to the employee.
Not telling the employee that they are allowed to bring a representative or support person to the meetings
Not interviewing all relevant people or having a biased process.
Waiting too long after the incident to interview people, so that their memories are no longer fresh.
Conducting interviews in an unfair manner, such as asking biased questions.
Not telling the employee what the possible disciplinary outcome might be at the start of the process.
Treating an employee differently to others who have acted the same.
Making decisions based on feelings rather than the facts.
Handing the employee a typed letter of disciplinary action or dismissal straight away at the end of a discussion about the problem.
Not giving employees enough time to get advice or prepare a response.
Failing to consider the employee’s explanations for their behaviour.
Not considering all of the information available in the investigation such as other witnesses or other processes or systems.
What can I do about it?
If you bring a personal grievance for unjustified dismissal, it may end up in the Employment Relations Authority. The Employment Relations Authority will decide the case objectively, by looking at whether your employer’s actions were what a fair and reasonable employer could have done in the situation.
The authority will consider the following:
Did your employer have a good reason for dismissing you (this is called “substantive fairness”), and
Did your employer followed a fair process in dismissing you (“procedural fairness”).
When should an employer begin a disciplinary process?
Before beginning any process, and employer should check for any agreed disciplinary procedure before starting and make sure that they follow it.
If needed, and employer should do some preliminary investigations to decide whether a disciplinary process is required (eg read documents such as emails, speak briefly with someone who saw what happened or the employee who might be disciplined).
If an employer needs to talk with any other employees, they should take care not to embarrass the employee being investigated in case the concern turns out to be not real, unbelievable, or unsupported by evidence.
An initial investigation should give an employer assurance that there is an issue to be resolved or addressed, and, that the correct method for addressing the issue is a disciplinary process.
It is not a good idea for an employer to raise an issue with an employee if they do not have a reasonable belief that there is an issue.
Once the employer holds a reasonable belief that there is a good reason to have a conversation with the employee about the problem, they should tell the employee.
If your an employee that has been informed that there is a process, you will need representation.
When should an employer provide a notification of disciplinary process letter?
When an employer is starting a disciplinary process, the employer should provide a letter to the employee advising them employee what the matter is, what the employer knows about the matter, and why the employer thinks the matter may be a problem.
The letter should detail the proposed process to be followed, including investigating the matter, and advise the employee of their opportunity to comment on the process.
The employer must tell the employee about the possible consequences they are facing (eg the outcome of the investigation could result in disciplinary action or dismissal). Keep in mind this may not be the outcome but any likely outcome must be provided by the employer to the employee.
An employer must advise the employee that they should participate in the process as needed.
An employer must advise the employee they may seek representation or bring a support person.
In certain serious situations, the employer may consider whether suspension is necessary.
If you have been suspended or have received a letter, you will need representation.
When can an employer suspend an employee?
An employer can only suspend an employee in limited circumstances, which include:
Where an employee’s behaviour is under disciplinary investigation and having them at work may compromise the investigation or cause further issues, for example, if the employee is suspected of fraud, they may need to be removed to protect the workplace during the investigation; and/or
Where the employee poses a risk to health and safety, for example, if the employee works in a safety-sensitive area and is under the influence of drugs/alcohol or is not in a fit emotional state to do their job safely.
It is good practice to have a clause in the employment agreement or to have suspension covered in workplace policies. In some situations it is possible to suspend without a clause, although it can be more difficult.
A suspension is a drastic measure that should not be lightly undertaken. It should not be used as a disciplinary tool - the length of the suspension should reflect the time needed to conduct the investigation or the time needed to reduce the health and safety risk, so the employer should not let it drag on.
What is the process of suspending an employee?
The employer should follow a fair process when deciding to suspend the employee. However, there may be some rare exceptions when an employer may not have to give the employee an opportunity to comment on the concerns eg where there could be an immediate danger to the employee or to others or the employee is unable to perform safety-sensitive work.
Generally, if the employer does not follow a fair process or have a good reason for the suspension, the employee may have a personal grievance against the employer.
Will I be paid while on suspension?
Any suspension should be on full pay. Suspension without pay can only be considered if it is specifically provided for in the employment agreement.
What is an investigation?
An investigation process must involve the employer sufficiently investigating the problem or allegation before taking any action against the employee.
The size of the investigation will depend on many factors, including the seriousness of the issue and the potential consequences.
If the issue is minor, you may decide to just have a conversation with the employee.
Make sure the conversation is documented.
The employer should be clear with the employee about the purpose of documenting the conversation and what will happen afterwards. An employer should send a copy of your notes to the employee so that they can comment on it and amend it to include their recollection of the conversation.
Let the employee know that if the issue happens again, you may consider a disciplinary process.
If your invited to a investigation, or are party to one, you will need representation.
When is the formal meeting?
If, after investigating the problem, the employer considers that the problem may amount to misconduct or serious misconduct. The employer should send the employee a letter inviting them to a meeting.
What should my employer should provide?
An employer must clearly identify the misconduct or serious misconduct and all of the evidence. A lawfully compliant employer will include any investigation report, witness statements, and any information relevant to the continuation of the employment of the employee (even if provided during the investigation process).
How will my employer request a meeting?
Employers will request a meeting to hear the employee’s explanation and feedback, and give the employee reasonable notice before the meeting starts (at least two to three working days).
If there is a lot of information in the investigation report, give the employee enough time to think through the report and prepare for the meeting.
An employer will set a time, date and place for the meeting and provide this in the letter. This will need to be flexible to ensure that the employee’s representative or a support person can attend.
An employer must advise the employee of potential outcomes if allegations or concerns are proven (eg it could result in disciplinary action, such as a written warnings or dismissal).
An employer should remind an employee to think about bringing a support person or representative to the meeting.
An employer should make sure you offer some form of support to your employee such as an Employee Assistance Programme (EAP), if your organisation has one. Otherwise, an employer may direct them to a similar counselling option.
What may happen at the meeting?
A decision-making member of the employer’s staff should lead the meeting.
The employer should put the full allegations, concerns and investigation results to the employee.Both parties should have an opportunity to discuss the issues raised.
The employee and/or their representative a chance to respond to the concerns.
Once the employee has responded to the employer’s initial findings, the meeting should end and the decision maker will take some time to consider all the information and reach a decision.
The decision maker must not decide upon an action before hearing the employee and must not give the employee a pre-typed letter informing them of the decision immediately after hearing their comments.
If the employer wants to raise a new issue, they will need to give the details in writing to the employee and then delay the meeting to another time so the employee has time to consider those new matters before responding.
An employer should keep a written record of what is said in all conversations and at all meetings.
If you are invited to a formal meeting, you will need a representative.
What if further investigation is needed?
If the employee gives an explanation or information that was not available before the meeting or that requires further investigation, the employer must check this to make sure it is (more likely than not) true or correct.
The employer will need to tell the employee of the intention to investigate in the same way that they did at the start of this process. This should be done in writing by way of letter.
If further investigation is taking place you will need a representative.
When will a second formal meeting occur?
If the employer needs a second formal meeting after further investigation the employer must:
Request a meeting to hear the employee’s explanation and feedback; and
Give the employee reasonable notice before the meeting starts (at least two to three working days).
Provide any and all information the employer is using to make the decision and information that is relevant to the continuation of the employees employment; and
Give the employee enough time to think through the report and prepare for the meeting; and
Set a time, date and place for the meeting; and
Provide this in the letter. Again this will need to be flexible to ensure that the employee’s representative or a support person can attend; and
An employer must advise the employee of potential outcomes if allegations or concerns are proven (eg it could result in disciplinary action, such as a written warnings or dismissal).
During the meeting the employer must:
Give the employee an opportunity to comment on any new information; and
Allow the employee to bring a representative or support person; and
Record the meeting in writing.
Most decisions should be questioned thoroughly before the decision is made. If you, or someone you know considers the decision unjust or unreasonable, you need a representative.
What will my employer consider?
If an employer believes that disciplinary action might now be an option, then and employer should:
take time to consider your employee’s response and/or explanation; and
have an open mind as to what the decision should be; and
remember that disciplinary action must be what a fair and reasonable employer could do in the circumstances.
What must be included in this situation?
An employer decision must:
Be based on reasonable expectations?
Consider the information that proves and or disproves that the employee committed the specific kind of misconduct alleged.
Be based on facts.
Consider if the employee is fully aware of the issues raised.
Demonstrate that the employee had a genuine opportunity to respond to all of the information provided by the employer.
Genuinely consider the mitigating factors to take into account (eg workplace challenges, health or family issues etc).
Explore any alternatives to a final decision to terminate.
Provide a clear view on the relevant and irrelevant information.
Be fair in it's treatment to any other affected employees in the same or similar fashion.
Most decisions should be questioned thoroughly before the decision is made. If you, or someone you know considers the decision unjust or unreasonable, you need a representative.
What is a preliminary decision?
An employer must provide the employee with a ‘preliminary decision’, including details of any proposed disciplinary action.
An employee must be allowed to respond to the ‘preliminary decision’ before a final decision is made.
One way to do this is through setting up another meeting with the employee. Alternatively, you could send a letter to the employee with your preliminary decision and the reasons behind it, and give reasonable time for the employee to give written feedback.
An employer must consider the employee’s feedback, if any, with an open mind before making a final decision.
An employer will have to demonstrate how they took the employee’s comments into account in recording this in the decision.
What is a final decision?
An employer is lawfully obliged to give their your final decision:
In writing; and
With and explanation of the reasons and information used to make the decision; and
Provide the employee with an opportunity to seek representation on the decision.
If an employer is conducting a meeting on a final decision, the employer must ensure the employee is given an opportunity to have their representative or support person present.
An employee must be allowed to respond to the ‘preliminary decision’ before a final decision is made.
An employer should send a letter to the employee with the employers preliminary decision and the reasons behind it, and give reasonable time for the employee to give written feedback.
An employer must consider the employee’s feedback, if any, with an open mind before making a final decision.
An employer will have to demonstrate how they took the employee’s comments into account in recording this in the decision.
If you, or someone you know is facing a final decision, you need a representative.
Workers are constantly subjected to unfair dismissal processes. There is a long and extensive history of these and it is impossible to traverse these in one sitting.
A dismissal itself has a well established definition which was likely first established in a contemporary sense in the case Wellington, etc, Clerical, etc, IUOW v Greenwich where the employment court provides:
termination of the employment relationship at the initiative of the employer.
This definition was then re-emphisied during the case of E N Ramsbottom Limited v Chambers, and again in Porirua Whanau Centre Trust v Ngawharau.
The aforemention definition applies to dismissals on notice, summary dismissals, copnstructive dismissals, and other forms of dismissal where the situtation is not considered a redundancy.
Its all about the employers actions.
In Cornish Truck & Van Limited v Hildenhuys the Employment Court provided that the test for deciding or determining whether an employer actions constituted a dismissal is an objective measure. The question to be answered is:
Was it reasonable for the employer, or someone in the position of an employer to consider the employment had bee terminated.
In regard to this, the Employment Court provided in Concrete Structures (NZ) Limited v Ward that:
logically leaves room for a finding that dismisal ocured even if the employee did not subjectively believe it to be so.
AND
It also logically leaves room for finding that a dismissal occurred even if the employer did not subjectively believe it to be so, and by extension, where neither the employee nor the employer subjectively believed dismissal had occured.
The Court then goes on to provide that circumstances where the party effected a change in relationship where the relasionship was concluded for whatever reason, could subjectively miss what any reasonable person would observe objectively as being a dismissal, and so then the question becomes: Was that dismissal justified? Was that dismissal, (or action) what a fair and reasonable action that an employer could have done given all of the circumstances.
Deciphering this can get tricky. The long and short of it is to call a representative if you find yourself in any process in the workplace.
If I am not doing my job, can I be fired? Or be forced to resign?
In Furze v Harley Plasterers Limited the Employment Relations Authority provides that:
a common misunderstanding amoungst employer that they can treat someone as having quit there job when the employee fails to do something they are told to do. An employer cannot impose a resignation upon an employee, or characterise the employment as having ended by resignation when the employee does not actively resign. The imposition of the condition (do X, or you will be deemed to have quit) is actually a dismissal.
However, if you are being told do your job or i'll fire you for refusing to do duties you are not trained for, or that are unsafe, or that are not compliant with the law, is something that happens all of the time and it totally unlawful.
It's an employment relationship. Talk it out. But before your do, get representation!
Can my employee just say I am fired without any process?
No. Definitely not. But some circumstances can be confusing when tempers flare. In New Zealand Cards Limited v Ramsay the Employment Court provided that the situation where an employee was treated as having resigned, with no process at all, is not a dismissal or a resignation. And it's all about communication:
Where the communication is equivocal, the employer learns that the employee has misunderstood it as a dismissal contrary to the employers intention but does nothing within a reasonable time frame to correct the employee's false impression. In such a case the employer must suffer the adverse consequences of passively standing by and letting the employee think that a dismissal has taken place.
Picture this: You are going through the a employment process, the employer does not get back to you. You are on suspension, the employer cust you off with no communication and you are left to assume that the empolyer has fired you. This likely means you have been unfairly dismissed.
The good faith obligations mean parties must remain open and communicative. It is an employment relationship afterall. But going into one of these processess without representation means that your employer will dominate the communicaiton in their favour. Get a representative.
There are so many circumstances where the disciplinary process can go wrong that it is simply a fools errand to enter one without representation.
So was/is my dismissal, or process unjustified?
Likely. That fact that you are looking for information means that something is likely off about the entire matter, however, one must consider the concept of unjustified of unjustifiable in employment law.
In Auckland City Council v Hennessy (the person, not the drink, both wonderful) the Court of Appeal provides:
Its integral feature is the word unjust - that is to say not in accordance with justice or fairness. A course of action is unjustifiable when that which is done cannot be shown to be in accord with justice or fairness.
Now, the concepts, and understanding the concepts of justice and fairness and how they apply to your situation is exactly why representation is absolutely essential when dealing with anything in employment and that includes dismissal, disciplinaries, and investigations. Get a representative.
This concept is a conerstone in employment law and determinations as to the nature of the employers decision making process and the decision itself.
In Wellington Road Transport Union of Workers v Fletcher Construction Company Limited the Court of Appeal provided that unjust was:
...unfair, without due cause, unreasonable, improper, unwarranted or arbitrary.
In Telecom South Limited v Post Office Union Incorporated the Court of appeal provides that:
A dismissal is unjustifiable if it is not capable of being shown to be just in all the circumstances.
What is justifiable is considered on the basis of moral justice. There is also a test of the balance of of the interests of both the employer and the employee in these circumstances which must be carefully addressed. Far to may employer's make mistakes in this realm, this leaves workers being subject to unjust processes at an alarmingly high rate in Aotearoa New Zealand.
This case law is now transalted into s. 103 A of the Employment Relations Act 2000 which provides:
The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
The Employment Relations Act 2000 also provides that for a dismissal or action to be justifiable the employer must consider:
whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and
whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
If any of the the above is not happening in any employment process or experience you are involved in, you should contact us now. It is likley that you are being subjected to a unfair and unreasonable employment situation.
If you or someone you know is subject to a process, disciplinary, warnings, or investigation in the workplace and does not have a representative, then any delay in seeking the right advice can hurt any chances when it comes to any future outcomes.
Working For Workers is happy to assist in representing you in any workplace process.
Working For Workers understands that it is hard to trust anyone when is comes to raising matters of employment, and that there is much to risk in challenging the place where you spend all of your time and earn all of your income: your employment.
Often, the experience of the process itself and trying to resolve matters can be stressful and exhausting and you often feel alone without representation or guidance.
You are not alone. There is help.
Working For Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak or difficult it seems, there are ways and means of getting your rights observed and your position protected in any future process.
Please contact us today to discuss the matter and start turning things around for you.