Making sure that a fair process is followed is as important as making sure that there is a good reason for taking an action. The employer and employee must also both act in good faith throughout the process. Fair process is sometimes referred to as procedural fairness.
What a fair process involves
When taking action against the employee, the employer must follow the requirements of the Employment Relations Act 2000 and natural justice. This means that the employer must:
- fully investigate the concerns, taking into account the resources that they have to do this
- properly raise their concerns with the employee. This involves telling the employee exactly what the problem is, providing all relevant supporting information and telling them that disciplinary action is a possibility
- give the employee a reasonable opportunity to tell their side of the story, and
- genuinely consider the employee’s explanations (if provided).
The employer should also:
- make sure the decision maker is as impartial as possible
- tell the employee that they may have a representative or support person present at any disciplinary meetings
- give the employee an opportunity to seek independent advice throughout the process
- give the employee an opportunity to give their explanation or response to the person who will make the final decision
- not make the decision on what action to take until after hearing and considering the employee’s response to the proposed course of action
- treat employees without bias and in a way that takes into account any similar situations that have occurred
- consider all options before making a final decision.
It is important to note that both parties must also comply with the duty of good faith during this process. In particular, the parties must be responsive and communicative.
If the employer has a set procedure for a disciplinary or dismissal process
If an employer has a set procedure to deal with disciplinary issues, warnings or dismissal (this should be included in the employment agreement, workplace policies or in writing elsewhere), then they have a contractual or good faith obligation to follow this.
More information on fair process: