Disciplinary Procedures

Get Legal Advice As An Employer Carrying Out Disciplinary Procedures On Employees

What Is a Disciplinary Process?

A formal process to address allegations of misconduct or performance issues. It can result in warnings or dismissal.

Why Employers Must Act Fairly

– Genuine reason: The allegation must be based on facts, not assumptions or bias. – Procedural fairness: The employee must have a fair chance to respond before decisions are made. – Test of Justification (s103A ERA): Would another fair and reasonable employer have done the same?

What a Proper Disciplinary Process Looks Like

– Written letter outlining the specific allegations, possible outcomes, and right to bring a support person – Adequate notice before meetings – Genuine opportunity for the employee to respond – Consideration of alternatives before dismissal

Steps to Take

1. Investigate first — don’t jump straight to disciplinary. 2. Inform in writing — outline allegations clearly. 3. Hold a fair meeting — listen, ask questions, allow support. 4. Consider response — don’t pre-determine the outcome. 5. Decide proportionately — warning, training, or dismissal (only if justified).

When an employee faces a disciplinary process, the law requires employers to act fairly and reasonably.

This is called procedural fairness. It’s not just a box-ticking exercise — it’s about treating people with respect and following a clear, lawful process so you don’t end up defending an avoidable grievance in the Employment Relations Authority or Court.

Fairness in a disciplinary process means being open, clear, and respectful. Employees must be told in writing exactly what the concerns are, given enough notice and evidence to prepare, and have the chance to respond properly.

They’re also entitled to bring a support person, and above all, employers must keep an open mind — no decisions should be made until every side of the story has been heard.

A fair process makes disciplinary decisions more robust, defensible, and far less likely to be overturned.

Procedural Fairness matters because even if the issue is genuine, cutting corners can lead to expensive payouts, damaged reputation, and unnecessary stress. Do it your own way at your own risk. Don’t rush.

.By applying procedural fairness, you’re not only doing the right thing by your employees — you’re also protecting your own business.

At Resolve Legal, we guide employers through each step of the disciplinary process so you stay compliant, reduce risk, and resolve issues confidently — without ending up in court.

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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.

When misconduct occurs, an employer has a range of sanctions available — from a verbal or written warning through to dismissal for serious misconduct.

The purpose of sanctions is not simply to punish but to correct behaviour, set clear expectations, and protect the integrity of the workplace. Sanctions should always be proportionate to the seriousness of the conduct. For example, a one-off minor breach, like lateness, may justify a warning, while theft or violence may justify summary dismissal. Employers should remember that every sanction must be backed by a fair process: the employee must understand the allegation, have the opportunity to respond, and be treated without bias before any decision is made.

Deciding which sanction to apply requires balancing fairness, consistency, and the needs of the business. Employers should consider factors such as the seriousness of the behaviour, the impact on colleagues or the business, whether the employee has a history of misconduct, and whether they were aware of the rules or policies they breached. Consistency is key — if two employees commit the same type of misconduct, similar sanctions should apply unless there is a clear, fair reason to treat them differently. Employers should also think about whether training, coaching, or a warning could resolve the issue before moving to more severe steps. By taking a measured and documented approach, employers not only uphold their legal obligations but also maintain trust and credibility within their teams.

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Disciplinary Resources

Misconduct
Staff issues are stressful:

Make a plan

Stick to it

Act Well

There are 3 layers to Misconduct in the workplace that may require a disciplinary process and or dismissal.

Performance Issues

Minor Misconduct

Serious Misconduct

Misconduct issues are reduced when you have:

Clear employment agreements

Codes of conduct

Policies and procedures

This guide helps you manage misconduct and disciplinary issues in your workplace safely.

Good Faith Principle

The Good Faith Principle is the underlying principle of the Employment Relations Act 2000.

Good Faith means that all parties to an employment agreement must act:

Honesty

Openly and

Without hidden motives

This basically means:

To act in a kind and respectful manner

Staying professional

Allowing people time and opportunity to discuss their perspectives on things

Process to Follow

In the spirit of good faith, the two things that you must do are:

1. Have a genuine reason to start any disciplinary actions against an employee.

2. Carry out a fair process without bias or predetermination when investigating any allegations.

When you when you are working through the investigation process:

Follow the disciplinary procedures in the;

Employee’s Individual Employment Agreement and;

Your workplace policies

Process

1. Investigate in a procedurally fair way

2. Consult the employee before any big decisions are made

3. Assess whether there are any real issues to address

4. Decide what the probable level of misconduct is:

Poor performance (termination unlikely)

Minor misconduct (termination unlikely)

Serious misconduct (possible termination)

All must be investigated in a procedurally fair way, where the employee is consulted before any big decisions are made.

Types of Misconduct

Serious misconduct is:

When an employee does something that:

1. Undermines the trust of the employer

2. In the course of their work. This could be things such as:

Assault

Bullying

Drug or alcohol use

Theft or fraud

Minor Misconduct is:

When an employee does something at work that is:

1. Not illegal but

2. Considered not acceptable

3. This tends to be:

Unauthorised or unexplained absences

Persistent lateness

Repeated performance issues

Internet misuse

Poor performance is:

When an employee’s performance falls below the required standard of work. Like;

Misuse of sick leave

Failure to follow instructions

Excessive break time, or phone time

Lateness, or leaving without permission

If you are investigating serious misconduct:

You can consider whether suspending the employee with pay would be appropriate

This requires a full consultation process. See the serious misconduct section for further information on how to manage serious misconduct
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 will be raised against you and your business and cost you a lot of money (thousands not hundreds).

Process to Follow:

Formally investigate the allegations

1. Interview all the witnesses. Have them provide:

Date and time of the incident

A full description of the alleged behaviour

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

The investigation must:

Match the seriousness of the allegation

This may mean an impartial third party may lead the process

Formally advise the employee and invite them to an investigative meeting. It is important to provide the employee with evidence of the allegations. The primary purpose of the investigative meeting – is to allow the employee to respond to the allegations.

To advise the employee, send them an email with:

The allegations clearly set out

The supporting evidence of these allegations (including statements from the witnesses)

Detail the possible outcome

Inform them that no outcome has been predetermined

Inform them that this meeting is to discuss the allegations

Give them an opportunity to provide an explanation or mitigating factors for their alleged behaviour.

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:

1. Record the meeting

Got someone to write a transcript

Record it with a tape

Provide both to the employee

2. State the allegations clearly and in full to the employee

3. Go through the evidence provided to them

4. Allow the employee to respond fully

5. Keep an open mind

6. Assess all explanations they may offer objectively

7. Answer all questions honestly

8. Provide a timeline for the process

9. Ask how they would like to receive the preliminary decision:

Face to face

Email

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

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:

1. Are your expectations reasonable?

2. Does your evidence support the allegation?

3. Do you honestly think the employee committed the misconduct?

4. Are there mitigating factors to consider?

Health issues

Family issues

5. Have you taken anything irrelevant into account?

6. Have you treated employees in the same situation?

7. If so, what was the outcome?

8. Did you follow the correct procedure?

9. What alternatives are there to your decision?

After considering these factors – then make the final decision. Inform your employee via their preferred method of communication and set up a meeting if they wish to discuss in person.

Employee Feedback On Preliminary Decision

Employee feedback is vital:

It constitutes part the procedural fairness process

As part of the good faith principle.

Listen to their feedback

Fully consider it

Consider:

The pros of sticking with your preliminary decision

The cons of sticking with your preliminary decision

All the mitigating factors

Ensure your decision making is coming from an objective point of view

Final Decision

When making your final decision consider:

The employee’s feedback

Mitigating factors

Personal circumstances

Severity of the Allegation

Proportionality and consistency

Once you have made your final decision:

1. Write to the employee

7. Outline the final decision

8. Provide reasoning

9. Provide them, details around:

Their final date of employment

Final pay

And how they can return any company propertyc
Constructive Dismissal
3 main grounds for constructi

When an employee resigns because:

They believe the employer breached a term of their employment contract; and

The breach was of sufficient seriousness to force them to resign;

They may have been Constructively Dismissed

The 3 main grounds for constructive dismissal are:

The employer tells the employee – you either resign or I will dismiss you

The employer coerces the employee to resign by actions and conduct deliberately intended to force a resignation

A breach of an implied or express term by the employer leads an employee to resign. (An implied term refers to the employer’s duty not to act in a manner calculated or likely to destroy the trust and confidence of the employer; an express term would be not pay the employee’s wages)

Constructive Dismissal is not:

Inconsiderate conduct by the employer making the employee unhappy or resentful

Impoliteness from the employer (in the absence of unfairness or oppressive conduct)

Frank expression of the employer’s dissatisfaction with the employee’s performance

The employee didn’t like the way the employer directed them on how to perform their job

The Courts use a Two Step Test To Decide Constructive Dismissal

Question 2:

Was the breach sufficiently serious to give rise to a constructive dismissal?

This question is tricky because ‘sufficiently serious misconduct’ cannot be stated with any certainty or precision because the facts in each case are so varied.

Chief Judge Goddard stated: “the breach must be substantial enough to destroy, or at least seriously undermine trust and confidence” …in the employment relationship.

Employer behaviour is:

assessed on an objective basis

compared to what is considered ‘reasonable conduct by a reasonable employer’

Then the Court determines whether your actions were how a fair and reasonable employer could have acted in all the circumstances.

Question 1:

Did the employer breach either an express (written) or implied (unwritten) term of the Employment Contract?

You have a duty to comply with both express and implied terms of the agreement

The breach must be behaviour that is dismissive or repudiatory

Inconsiderate behaviour that makes employees unhappy does not make the test

If the answer to this question is NO, there is no constructive dismissal at this stage.
If the answer is YES, the court will move to question 2.

What are employer obligations?

The onus is on the employee to show constructive dismissal occurred.

This means:

The evidence needs to be strong enough for you to have to answer to it

If the evidence is strong enough, the evidential burden then shifts on to the employer who needs to justify the employee’s dismissal

On the balance of probabilities

Where the court assesses that they are over 50.01% sure

The employer acted accordingly, and that the dismissal was justified Constructive dismissal is quite common, but it is hard to prove.

Get Legal Advice if You Are Defending A Disciplinary Claim.

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Disciplinary Procedures

Get Legal Advice As An Employer Carrying Out Disciplinary Procedures On Employees

What Is a Disciplinary Process?

Why Employers Must Act Fairly

What a Proper Disciplinary Process Looks Like

Steps to Take

When an employee faces a disciplinary process, the law requires employers to act fairly and reasonably.

Our Case Process

Detailed Planning

Consultation

Settlement

When misconduct occurs, an employer has a range of sanctions available — from a verbal or written warning through to dismissal for serious misconduct.

Disciplinary Resources

Good Faith Principle

Process to Follow

Types of Misconduct

Process to Follow:

3 main grounds for constructi

The 3 main grounds for constructive dismissal are:

Constructive Dismissal is not:

The Courts use a Two Step Test To Decide Constructive Dismissal

What are employer obligations?

Get Legal Advice if You Are Defending A Disciplinary Claim.

Call Us
021 242 3200

Employee Services

Employer Services

Articles

Disciplinary Procedures

Get Legal Advice As An Employer Carrying Out Disciplinary Procedures On Employees

What Is a Disciplinary Process?

Why Employers Must Act Fairly

What a Proper Disciplinary Process Looks Like

Steps to Take

When an employee faces a disciplinary process, the law requires employers to act fairly and reasonably.

Our Case Process

Detailed Planning

Consultation

Settlement

When misconduct occurs, an employer has a range of sanctions available — from a verbal or written warning through to dismissal for serious misconduct.

Disciplinary Resources

Get Legal Advice if You Are Defending A Disciplinary Claim.

Call Us021 242 3200

Employee Services

Employer Services

Articles

Call Us
021 242 3200