Fair process

When taking any action against an employee, an employer must follow a fair process. Following a fair process is as important as having good reason for taking action against an employee. The employer and employee must both act in good faith throughout the process.

What does fair process involve?

When taking action against an employee, an employer must follow the requirements of the Employment Relations Act 2000 and principles of natural justice.

Employment Relations Act 2000 - New Zealand Legislation(external link)

This means that they must:

  • fully investigate concerns, considering the resources that are available to them
  • properly raise their concerns with the employee – communicating exactly what the problem is, providing all relevant information, and the possibility of disciplinary action
  • give the employee a reasonable opportunity to tell their side of the story, and 
  • genuinely consider the employee’s explanations if provided.

Employers should also:

  • make sure the decision-maker is as impartial as possible and has the appropriate level of authority
  • inform the employee that they may have a representative or a support person present at any disciplinary meetings
  • give the employee an opportunity to seek independent advice throughout the process
  • give the employee full and relevant information, for example, interview notes, statements about the behaviour from others, surveillance footage
  • give the employee an opportunity to explain or respond to the person who will make the final decision
  • not make a 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 considers any similar situations that have occurred 
  • consider all options before making a final decision.

It is important to note that all parties must also comply with the duty of good faith during this process, particularly being responsive and communicative.

If the employer has a set procedure for disciplinary action or dismissal

If an employer has a set procedure to deal with disciplinary issues, warnings or dismissal, they have a contractual or good faith obligation to follow this. These procedures should be set out in writing, for example, in the employment agreement or workplace policies, and this information should be accessible to employees.

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