The disciplinary process is a formal tool for managing and correcting poor performance or inappropriate behaviour. It helps employers work through issues with employees and to deal with problems before they become bigger.
Disciplinary process is clearly laid out in New Zealand employment law and must be fair and reasonable at all times.
When the employment relationship goes sour
There are lots of ways an employment relationship can go sour. It may be poor performance, a bad fit within the team, someone who has been promoted beyond their level of competence, or a change in business focus that has made staff uncomfortable.
Once you have taken initial steps to manage the situation, such as relationship-building exercises, performance improvement, changing positions, reexamining your hiring criteria, or mediation, you will need to step up your efforts.
The steps you take will depend on the situation and the outcome you want. If you think the relationship is recoverable, then the way you approach it will be quite different to wanting to exit the person as quickly as possible because you’ve exhausted all other options and run out of patience.
Option 1: Clear your desk!
You can always tell an employee to hit the road without further ado. It’s not legal to do so in New Zealand, and doing it will put you at serious risk of personal grievance action and any potential payouts or penalties.
Naturally, we don’t recommend this option.
Another option is putting a settlement together for them to leave the business. You may have reached an impasse in the disciplinary process, or see no clear way to salvage the employment relationship. You can reach a settlement with the employee to pay them money to leave. This will take negotiation.
Be aware that there are many legal fishhooks in taking this option so we strongly recommend you get professional advice before you do anything.
Option 2: Proactive management
Using regular, informal discussions and targeted feedback is part of developing and maintaining a healthy, productive relationship with your team members.
Work is important to people, and most employees want to perform in their role and enjoy their job. Good team members should respond positively to well-considered and well-timed feedback.
If you have any concerns about a person’s performance or behaviour, it is much better to catch it early, before it becomes established or turns into a bigger problem. An ounce of prevention is better than a kilo of cure.
If things don’t improve, you can then choose to ramp up your efforts and make the process more formal and binding, e.g. using a record of discussion or a performance improvement plan (PIP).
Option 3: Disciplinary
If more subtle ways tools have not worked and things are still substandard, you can take formal disciplinary action.
The disciplinary process is about sending a clear message that the person’s performance or behaviour is not acceptable and then working with them on a constructive way forward. It’s not about punishing the employee (though in some circumstances, you might feel like you want to). The goal is changing the behaviour or performance.
The process will often work best when paired with a PIP.
Steps in the disciplinary process
The disciplinary process involves 3 key meetings with the employee:
1. Notification meeting
This is where you formally present your concerns to the employee (potentially for the first time). You don’t need to give notice of this initial meeting, and it may be less stressful for everyone if it is somewhat impromptu.
This is a conversation; talk through your concerns and give the employee a document that details the issue(s) and how their performance or behaviour wasn’t up to the mark.
The letter should also outline the next steps in the process, what the potential outcome is – e.g. a formal or final warning, or dismissal – and what their rights are in terms of seeking advice and having a representative or support person with them at the next meeting.
The employee doesn’t have to give a response on the spot. They might be shocked, defensive or angry about being formally disciplined, and they are legally entitled to take some time, seek advice, and come back with a prepared response to the concerns raised.
The time to prepare a response should be fair and reasonable. We advise giving them 2 working days, but if the employee asks for more time, up to 2 weeks is considered reasonable.
2. Response meeting
This is the employee’s time to tell you their side of the story. Don’t predetermine the outcome, and listen. You can ask questions about their response, to clarify or elaborate on points, but they should be free to talk.
The employee is entitled to bring with them a representative (e.g. advocate or lawyer) who can speak on their behalf or a support person (partner, friend or relative), who is not there to speak for them. The employee is responsible for paying for any advice or representation.
At the end of the meeting, you should have a good understanding of their explanation and how you want to proceed. They may have raised further questions that need investigating, or they may accept they need to improve.
You shouldn’t make a decision then and there. The next step in the process is to go away and fairly consider all the evidence and make a decision.
3. Outcome meeting
This is where you present your decision. You may have decided to proceed with a formal warning or the employee may have brought to light information that proved it was not their fault or there were extenuating circumstances.
As well as the verbal statement, it’s best to set out the decision in a letter that details the information presented by both parties, how the employee’s feedback was factored into the decision, how long any disciplinary action is valid for, and what the next steps are for supporting their improvement, e.g. further training or changes to their duties. This is where a PIP comes in.
Important things to get right
The main reason the disciplinary process exists is to ensure your employees are treated fairly and reasonably and that the employer is supported in making a fair and reasonable decision.
The process by which you manage and examine the concerns or allegations is as important as the concerns themselves. So you need to ensure:
- You follow the correct steps in the process.
- You have a good reason for undertaking the disciplinary action.
- The employee is aware of the allegations against them. It can be a challenge if you are dealing with a complaint from a third-party, eg a colleague or customer, and you don’t have all the details.
- The employee has the opportunity to seek advice and prepare their response.
- The employee has a chance to give you their feedback. They don’t have to do so, but they must be given the opportunity.
- You consider their feedback in your decision.
Things to watch out for
New information comes to light
Through the course of the process you may find out the problem was bigger than first thought or that the employee wasn’t responsible at all. This may cause you to go back to the beginning of the process, possibly dealing with another employee or other employees.
Employee delays or has a difficult representative
Sometimes, the employee can attempt to drag the process out, delaying or postponing meetings. It may be they know they are in the wrong and don’t want to front up or they have been advised to delay the process by their advocate. This can be frustrating and ratchet up the emotional intensity of the process.
The person’s representative or advocate may also be combative, which can hinder discussion and constructive resolution.
In these instances, it’s important to stay calm, focus on following the correct process, and treat the employee fairly and reasonably. You’re busy, it could be exasperating, and you might want to end the employment relationship as fast as possible, but doing that could well come back to bite you.
Rushing to judgement or predetermining the outcome
As the employer, you cannot make a judgement without consulting with the employee and taking their response into account. Even if it appears to be a cut-and-dried case with convincing evidence of wrongdoing, you must follow fair process.
Presenting your concerns to the employee and considering their feedback is integral to the process (the right of reply to any allegations is a cornerstone of natural justice).
If you just give them a formal warning without undergoing fair and reasonable process, the employee will have a very strong case for personal grievance action and you could end up having to pay them money.
The employee isn’t at fault
Sometimes, the employee will have a perfectly good explanation for their conduct or performance. This can make you look vindictive for putting them through the formal disciplinary process.
Doing thorough preparation before you start the process should mean you aren’t making unfounded assumptions, blaming a troublesome employee for things they haven’t done, or you have missed the point entirely.
If you have solid grounds for proceeding with disciplinary action and you’re still proven wrong, you will need to make efforts to rebuild the relationship. You will have burnt some goodwill and the employee could (understandably) feel hard done by, misunderstood, or harshly judged. Time to apologise and eat some humble pie.
Hopefully, the disciplinary process works as a corrective tool and the employee’s behaviour or performance improves afterwards.
Do everything you can to support this improvement, with guidance, counselling, training, and regular check-ins. Make sure you keep your side of the bargain and do whatever you say you will. You might even organise a little something as a celebration or reward.
Or... performance management
In some cases, the employee continues to perform or behave badly, and you’ll be committed to moving them out of the business. In this case, you can hold them closely to account through consecutive disciplinary processes. This is called performance management.
If this is the case, you should be sure to give the person two written warnings before you look at dismissal for misbehaviour, misconduct, or continued poor performance. This means three disciplinary processes: the first ends with a formal written warning, the second with a final written warning, and the third with dismissal on notice.
It usually takes several months to reach a conclusion using this process, which can be arduous, and it may be tempting to rush to dismissal. Don’t. Unless the misconduct is serious, New Zealand case law has established that before it is fair to dismiss a person, they need formal warning that their performance or behaviour needs to improve and they are given the opportunity to do so.
A word of warning about verbal warnings
Verbal warnings aren’t uncommon in business, but we don’t recommend them. Case law has established that in order for a warning to be fair and valid, there has to be a consultation process prior to the warning being issued. Verbal warnings (or cautions) are often issued on the spot or after an informal discussion with the employee, which means fair and reasonable process hasn’t been followed.
Making sure you undertake fair process with a clear, demonstrable paper trail is much more robust.
MyHR Live 16: Disciplinary process
Frequently asked questions
How long should the disciplinary process take?
There are no stipulated time limits, and the length of the process will depend on the issue you’re presented with, its complexity and severity, how many people are involved etc.
You should always be mindful of completing the process fairly and thoroughly, while seeking to resolve it as promptly as possible (to minimise the stress on all involved).
One to 2 weeks is typical; anything longer than 3 weeks would be unusual.
Can you repeat a disciplinary process?
Yes. Holding an employee closely to account with repeated disciplinary procedures falls within the scope of performance management.
If you’re faced with an employee who is unwilling (or unable) to improve their performance or conduct, it’s best to run 3 disciplinary processes to safely remove them from the business. The first process would end with a formal written warning, the second with a final written warning, and the third with dismissal on notice.
You may be tempted to shortcut this process, but unless the misconduct is serious, case law has established that you need to give the person formal warning that they need to improve and you have to give them the opportunity and support to do so.
Can you give someone a final written warning for a different issue to the one you issued a formal warning for?
Prior warnings for unrelated issues can count towards a final warning. If you issued a formal warning for one issue, you can take the person through another disciplinary process for a separate matter and issue a final warning.
Having an employee on various warnings for multiple issues isn’t reasonable. However, Employment.govt.nz recommends giving the employee the opportunity to comment on why a previous warning should not count against them.