Disciplinary

Get Legal Advice On Resolving Employee Disciplinary Disputes

What Is a Disciplinary Process?

It’s when your employer investigates concerns about your conduct or performance. It may result in a warning or dismissal.

Why Does It Matter?

Handled unfairly, a disciplinary matter can place your career, confidence, and livelihood at risk.

What Disciplinary Action Looks Like

– A formal meeting letter – Allegations against you – A chance to respond – Outcome free of bias & predetermination

How Should I Respond?

– Take a support person to meetings – Ask for more time if needed – Get legal advice before attending if it feels unfair

Keeping Yourself Safe

Save all emails and letters – Bring support — don’t go alone – Ask questions if unclear

What If They Don’t Believe Me?

– If ignored, you may raise a personal grievance

If you have been invited to a disciplinary meeting, it is best to get in touch with a lawyer.

You might be feeling confused about why you need to attend the meeting and stressed about its possible outcome. Employers must act in good faith and give the employee a real opportunity to refute the allegation or mitigate their conduct at a disciplinary meeting. They must also be fair and free from any bias predetermination and give the employee a reasonable time to respond to the invitation. To ensure the employer complies with these good faith requirements, get Resolve Legal to attend the meeting with you and support you through the process.

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Our Case Process

Detailed Planning

We start by establishing the facts, identifying the issue and explaining the legal bits so we can get started on solving your employment problem. We want you to have peace of mind from the beginning of your journey with us.

Consultation

Next, we discuss your expectations and any risks we think you are facing, evaluate all evidence and prepare an action plan so you get the best outcomes. We prepare you for what’s to come and what you can expect.

Settlement

In the last part of our process, we prepare you for attending any meetings and complete the outcome as cleanly and as quickly as we can. We strive to protect our clients and get you the best results.

3 people at a workplace disciplinary meeting

We can help you identify the employment issue based on the information you have provided us and the likely outcome of the disciplinary meeting.

We can’t determine the exact outcome before having the disciplinary meeting as we will need to hear your employer’s side of the story. However, it’s important to have a support person with you at a disciplinary meeting who can support you during a stressful process and be a witness. Our employment lawyers can be this person for you and ensure that all goes legally and according to requirements.

After the meeting, the employer will be making a decision about what sanctions should be imposed, which can include counselling, warning, suspension and dismissal. If you believe the process was unfair, you can raise a personal grievance, but discussions and negotiations might be better in some cases. Let our friendly team be your partner during this challenging and stressful process!

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Disciplinary Resources

Misconduct
Process Guide for Employer’s Handling Employee Misconduct

If an employee has allegedly engaged in misconduct, there is a clear process to follow. Failure to follow this process may result in a personal grievance being raised against you and your business — costing you significant time and money.

Unlike serious misconduct, misconduct typically leads to warnings or corrective action rather than immediate dismissal. However, the same principles of good faith, fairness, and due process apply.

Process to Follow

Formally Investigate the Allegations

Interview witnesses and ask them to provide:

Date and time of the incident

A full description of the alleged behaviour

Inform witnesses that their statements will be shared with the employee under investigation.

The investigation must match the seriousness of the allegation.

Where possible, have the investigation conducted by a manager not directly involved.

Advise the Employee and Invite Them to an Investigative Meeting

Send a written notification (email or letter) setting out:

The allegations clearly

Any supporting evidence (including witness statements, policies, or documents)

The possible outcomes (e.g., a warning, performance plan, corrective action)

Confirmation that no outcome has been predetermined

Confirmation that the purpose of the meeting is to discuss the allegations and hear their response

A reminder that they may bring a support person or representative

Conduct the Investigation Meeting

Clearly state the allegations.

Present the evidence and go through it with the employee.

Allow the employee to respond fully.

Keep an open mind and assess explanations objectively.

Take accurate notes (or record the meeting with the employee’s agreement).

Provide a clear timeline for when a decision will be made.

Confirm how the employee would like to receive your preliminary decision (face-to-face or email).

Adjourn the meeting once the employee has had the opportunity to respond.

Make Your Preliminary Decision

In good faith:

Provide the employee with your preliminary decision (e.g., whether a warning is being considered).

Invite the employee to provide feedback before you make a final decision.

When weighing your preliminary decision, ask yourself:

Are my expectations of the employee reasonable?

Does the evidence support the allegation?

Do I believe the employee engaged in the behaviour alleged?

Are there mitigating factors to consider (e.g., health or personal issues)?

Have I treated employees in similar situations consistently?

Did I follow the correct procedure?

Are there alternative outcomes (e.g., training, coaching, mediation)?

Consider Employee Feedback

Employee feedback is part of procedural fairness and the duty of good faith.

Fully consider their explanation, mitigating circumstances, and any evidence they provide.

Weigh the pros and cons of your preliminary decision before moving forward.

Make Your Final Decision

When making your final decision consider:

The employee’s feedback

Mitigating factors and personal circumstances

The severity of the allegation

Proportionality and consistency with past cases

Possible outcomes include:

No action (allegation not upheld)

Informal discussion or coaching

First written warning

Final written warning (if repeated incidents occur)

Communicate the Final Decision

Provide the decision in writing.

Explain the reasoning behind your decision.

Outline any expectations, corrective actions, or timelines for improvement.

Confirm the consequences of repeated misconduct (e.g., further warnings or possible dismissal for serious misconduct).

Keep a copy on the employee’s file.

Key Takeaway

Dealing with misconduct requires a fair, transparent, and proportionate process. By following each step carefully, you reduce the risk of personal grievances and maintain a culture of trust and accountability in your workplace.
Serious Misconduct
Process Guide for Employer’s Handling Employee Serious Misconduct

If an employee has allegedly engaged in serious misconduct, there is a process to follow. You must follow it or a personal grievance may be raised against you and your business, costing thousands (not hundreds).

Process to Follow

Formally investigate the allegations

Interview all witnesses. Have them provide:

Date and time of the incident

A full description of the alleged behaviour

Inform the witnesses that their statements will be provided to the employee being investigated.

The investigation must:

Match the seriousness of the allegation

If appropriate, be led by an impartial third party

Advise the employee and invite them to an investigative meeting

Provide the employee with evidence of the allegations. The primary purpose of the investigation meeting is to allow the employee to respond.

When advising the employee (email):

Set out the allegations clearly

Attach/describe the supporting evidence (including witness statements)

Detail the possible outcomes

Confirm that no outcome has been predetermined

Confirm that the meeting is to discuss the allegations

Give them an opportunity to provide an explanation or mitigating factors

Inform them they are entitled to bring a support person

Investigation Meeting

The meeting should be led by a staff member who has authority over the investigation. Ensure that you:

Record the meeting:
Have someone write a transcript
   • Record it (audio)
   • Provide both to the employee

State the allegations clearly and in full to the employee

Go through the evidence provided to them

Allow the employee to respond fully

Keep an open mind

Assess all explanations they offer objectively

Answer all questions honestly

Provide a timeline for the process

Ask how they would like to receive the preliminary decision:
Face to face
   • Email

Adjourn the meeting once the employee has had a full chance to respond

Make Your Preliminary Decision

In good faith:

Provide your employee with your preliminary decision

Ask for feedback before you make your final decision

When making your preliminary decision ask yourself:

Are your expectations reasonable?

Does your evidence support the allegation?

Do you honestly think the employee committed the misconduct?

Are there mitigating factors to consider?
Health issues
   • Family issues

Have you taken anything irrelevant into account?

Have you treated employees in the same situation consistently?
If so, what was the outcome?

Did you follow the correct procedure?

What alternatives are there to your decision?

Employee Feedback on Preliminary Decision

Employee feedback is vital: it is part of procedural fairness and the principle of good faith.

Listen to their feedback and fully consider it.

Consider the pros and cons of sticking with your preliminary decision.

Consider all mitigating factors.

Ensure your decision‑making is objective.

Final Decision

When making your final decision consider:

The employee’s feedback

Mitigating factors and personal circumstances

Severity of the allegation

Proportionality and consistency

Once you have made your final decision:

Write to the employee

Outline the final decision and provide your reasoning

Provide details about:

Final date of employment (if applicable)

Final pay

How they can return any company property
Constructive Dismissal
Process Guide for Employer’s Handling An Employee Claim for Constructive Dismissal

What is Constructive Dismissal?

Constructive dismissal happens when an employee feels they have no choice but to resign because of their employer’s actions. Even though the employee resigns, the law may treat it as if the employer dismissed them.

This can expose employers to personal grievance claims for unjustified dismissal, with potential liability for compensation and lost wages.

When Constructive Dismissal Can Arise

Ultimatum resignation – Telling an employee: ‘resign or you will be dismissed.’

Coerce a resignation – Acting in ways that deliberately pressure or force an employee to resign.

Breach the employment agreement – Breaking an express (written) or implied (unwritten) term:

Implied term: duty of mutual trust and confidence (e.g. unfair treatment, undermining, bullying).

Express term: failure to pay wages or changing core terms without agreement.

What Constructive Dismissal is Not

Being firm but fair in performance management.

Expressing dissatisfaction respectfully and without bias.

Giving lawful and reasonable directions on how work should be done.

Being polite but clear when addressing concerns.

Mere unhappiness or resentment from an employee does not, on its own, amount to constructive dismissal.

The Two-Step Test Courts Use

Step 1: Was there a breach?

Did the employer breach an express or implied term of the employment agreement?

If No → there is no constructive dismissal.

If Yes → proceed to Step 2.

Step 2: Was the breach serious enough?

The conduct must be serious enough to destroy or seriously damage trust and confidence in the relationship.

The test is objective: would a fair and reasonable employer have acted the same way in the circumstances?

Employer Obligations & Burden of Proof

Initially, the employee must show enough evidence (‘prima facie’) to suggest constructive dismissal.

If they do, the employer must justify their actions on the balance of probabilities (just over 50%).

The ERA/Employment Court will then decide whether dismissal was justified or unjustified.

Best Practice for Employers

Communicate openly and early with staff about issues.

Document everything — performance concerns, meetings, and support offered.

Avoid ultimatums — never suggest resignation as an alternative to dismissal.

Follow fair process — allow employees the chance to respond to issues raised.

Provide support — encourage employees to bring a support person to meetings.

Seek legal advice before making changes to core terms (hours, pay, duties).

Act consistently — treat employees fairly and in line with company policies.

Key Takeaway for Employers

Constructive dismissal is difficult for employees to prove but can still succeed where employers act unfairly. A proactive, fair, and transparent process is the best protection.

For guidance on managing risk and maintaining fair process, contact Resolve Legal. We’ll help you resolve issues before they escalate into costly personal grievances.

Get Legal Advice if You Have Been Called To A Disciplinary Meeting.

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