Misconduct: Make sure you get the process right

Jason Ennor, Co-founder and CEO at MyHR
By Jason Ennor, Co-founder and CEO at MyHR

A case of a caregiver in Nelson being awarded over $6,000 compensation because of procedural flaws in her dismissal - despite her behaviour being serious misconduct - highlights the need to get the process right.

The woman was fired for an alleged affair with a gardener that involved “displays of affection” in the workplace and culminated in the pair being found together in the bedroom of a deceased resident.

She raised a personal grievance, which went to the Employment Relations Authority, and the employer was found to have not spoken to a key witness (the other participant in the incident) during the investigation and had sacked the caregiver on the same day as the dismissal hearing, so hadn’t adequately taken her stress and personal issues into consideration.

The employer had also failed to give the employee the company rule book, which clearly outlined that her actions were serious misconduct.

Even though the authority agreed that the woman’s misconduct was serious, and reduced the payout from the $34,000 originally sought, $6K is still a lot of money to pay to somebody found to have committed an act of serious misconduct.

Proper process is a legal requirement not just good manners

By taking more time to carry out a full and fair investigation as part of the disciplinary process - let’s say one hour to interview the key witness plus one day to adequately consider the employee’s response - the employer could have saved themselves over $6,000 (plus legal expenses).

We can’t overstate how important the process is. Procedural flaws are one of the most common reasons compensation is awarded for unfair dismissal and there are plenty of other Employment Court cases where an employee’s dismissal has been found to be unjustified and the employee reinstated to their position.

Following fair and proper process might seem to take ages when you’re doing it, but it’s not as long as mediation and Employment Relations Authority or Employment Court hearings afterwards.

This case also highlights how an employee must know something is wrong and/or unacceptable in your workplace before you can take serious action. You need to make sure everyone in the business knows what you expect of them and what the consequences will be if they don’t meet these expectations.

While some things are obvious (like stealing, drug use, or violence), there is other behaviour which can be ambiguous and subject to interpretation. Don’t apply a ‘common sense’ test because your version of common sense may not be the same as other people’s.

Rather, as Employment New Zealand, states: “Whether behaviour is serious misconduct will depend on the facts of each case, including the employee’s explanation of the incident. This must be explored during a fair investigation and disciplinary process for both misconduct and serious misconduct.”

Find out more about handling serious misconduct in the workplace.

Frequently asked questions

How many warnings before you can dismiss someone?

If you’re dealing with an employee who is unwilling (or unable) to improve their performance or behaviour, it’s best to run 3 disciplinary processes to safely terminate their employment. The first process would end with a formal written warning, the second with a final written warning, and the third with dismissal on notice.

If the misconduct is serious, however - e.g. theft, violence, being intoxicated at work - you could summarily dismiss the person. Be aware that this is not instant.

You can suspend them immediately, having proposed suspension to them first, but you still have to follow legal termination procedures, which include investigating the matter and allowing time for consultation and reflection.

How long do written warnings last?

The general rule that warnings last for 12 months, but it is good practice to state how long they are for when you issue them. Depending on the circumstances, they can sometimes be relied on for longer than is stated in the warning itself.

How much notice does an employer have to give for disciplinary action?

Employers are not required to give the employee any notice for the first notification meeting. This means once you have completed any necessary investigation and gotten your documents in order, you could simply ask the employee to meet with you privately, and begin the disciplinary process that day.

Alternatively, if you’d prefer to book a meeting with the employee 1 or 2 days ahead of time, you can do this, too. Both are legal, and which is more appropriate will depend on your business culture and practices, and on the employment relationship.

Get more answers to common questions about the disciplinary process.