An employer dealing with an employee’s misconduct has a challenge ahead of them.
There are a minefield of legal problems that an under-resourced employer has to negotiate to successfully conclude an employment investigation, without falling foul of the procedural rules that abound.
The continual review and teasing of the law regarding procedural fairness has made the task to justify a misconduct dismissal for a good, well-advised employer much more difficult.
The starting point for any discussion involving questions of misconduct and dismissal must be Section 103A of the Employment Relations Act 2000, which provides a test for determining if a dismissal (or any other employment action) is justified. It states that an employee can bring a personal grievance against their employer if they believe they have been unjustifiably dismissed. Employees must first establish that they have been dismissed. Having done this, the burden shifts to the employer to prove the dismissal was justified.
For a dismissal to be justified the employer must show:
- there was good cause for the dismissal (i.e. a valid reason), and
- the dismissal was carried out in a procedurally fair manner (i.e. warnings, an opportunity to comment, an opportunity to improve, etc.)
Issues regarding “procedural fairness” consume the majority of the time before the Employment Relations Authority. This area of HR practice is the Achilles heel of the good employer. The good faith obligation codified by s4 of the Act must be present in all aspects of the employment relationship. In terms of an employment investigation an employer must at least meet the statutory good faith obligations at all stages of that inquiry.
The starting point for any discussion involving questions of misconduct and dismissal must be Section 103A of the Employment Relations Act 2000, which provides a test for determining if a dismissal (or any other employment action) is justified.
While it all seems daunting, getting legal advice and wisdom from an experienced lawyer is extremely useful for small to medium sized employers making decisions that impact upon their employees. After all, if the best resourced employers like Air New Zealand, the Auckland DHB and Fonterra fail to get it right and lose in the Employment Relations Authority, what hope is there for a small or medium-sized employer who does not have those same resources and may not even know of s 103A?
Our employment law team will be happy to help you through whatever situation you are facing, ensuring that the process you adopt around an employment investigation is as complaint and risk free as possible.
Our thanks to David Grindle for writing this article.