Informal conversation or notification
Misconduct can be difficult to identify and deal with. The most important part is to act in good faith, and clearly distinguish between the type of misconduct you are dealing with, as this will ultimately determine the process you need to follow. Click here to learn more about the different types of misconduct.
If it’s minor, you can choose to have an informal conversation. It is still important that you document it and let the employee know that if it happens again, you’ll be starting a formal disciplinary process.
If it’s more serious, let them know that you’ll be investigating the issue, and will meet with them again after investigating. It is important to not expect an employee to comment on anything you deem as serious misconduct before you have an opportunity to share with them the information you are relying on, and allow them sufficient time to secure a support person and review the information.
Meeting invites for serious misconduct should:
- Be in writing (a letter or e-mail is sufficient)
- Include the reason for the meeting, which is to discuss their performance
- Where possible, any information that you may be relying on (such as clauses in their contract, processes, complaints from customers or other employees etc.)
- Inform them of their right to bring a support person with them
- State whether or not their position may be affected as a result of the process (not the meeting – there is a process to be followed, and completed)
- Allow them sufficient notice to go through any information you provided, and to secure a support person if necessary (a minimum of 2 days, and be flexible if their support person is not available immediately)
- Because this is the first step, you should inform them that the investigation may lead to the termination of their employment
- You also need to let them know that this is not the time for them to discuss their side of the allegation, as they will be given an opportunity to review any information or documentation you uncover as part of your investigation, before expecting them to comment
If you do not allow them a genuine opportunity to prepare and find support, your process may be deemed unfair. We know you want to get through this as nobody enjoys these types of conversations, but remember that they are likely very stressed and worried, and as part of your obligation to act in good faith, you need to be fair and reasonable. That means going through a proper investigation before meeting again to share and discuss your findings.
Suspension
For instances of serious misconduct where it is unsafe to allow the employee to continue working under any circumstances you should first check to see whether your employment agreement has a suspension clause, and if so, follow the steps set out in the clause. Even if no clause exists, you can still consider suspension, but in either instance, you should:
- First inform the employee that you are considering suspension (which should always be on full pay, at least for a predefined and reasonable period such as 2 weeks)
- Give them an opportunity to comment on the proposal to suspend them (they may have suggestions that could allow them to continue working in a different capacity)
- Have a reasonable deadline for them to respond (1 to 2 days is usually fair)
- Do not predetermine that you will suspend (by shutting off their system access, phone, etc.)
- Only once they respond and you have considered their input, can you suspend if that is still the only plausible way forward
Investigate the allegation or actions
If necessary, depending on the nature of the misconduct, get written statements from witnesses, with details like:
- the date of the incident
- what time it happened
- a description of the alleged behaviour.
Tell the witnesses that you’ll be disclosing their allegation to the employee you’re investigating. If you witnessed it yourself, document your own statement of the event, and get statements from other witnesses if possible.
Do not predetermine any outcome, any action that may be perceived as predetermination could land you in hot water. It is important to keep an open mind at all times. The Employment Relations Authority (ERA) and Employment Court will look at the actions you took and what a reasonable employer could have done in all the circumstances, taking into account the resources available to the employer at the time the action occurred.
Check documentation
Check relevant company policies and your employee’s employment agreement for clauses outlining unacceptable behaviour. This will let you confirm, if the allegations are proven, that they breached your rules, policies, or employment agreement.
Provide written findings
Set out your evidence in a letter. The letter should include:
- details of the allegations (including any witness statements)
- excerpts of the relevant clauses in the employment agreement or company policies that may have been breached if the allegations are made out
- a date on which you want to meet with the employee to discuss the allegations (let them know they can bring a support person or representation
- the consequences of what may happen if the allegations are upheld (for example, a written warning or in serious cases, termination)
Meet with the employee
Arrange a meeting with the employee — you can both have a support person there if you want to.
Set out the reason why you called the meeting. Explain the allegations against the employee and the possible consequences if they are made out.
Give your employee the chance to tell their side of the story. At the end of the meeting, let them know how long you’ll take to consider the situation (normally a day or two), and when/how you’ll inform them of the outcome.
Don’t make a decision without taking the time to genuinely consider their explanation. A fair and reasonable employer is obligated to act in good faith, which means being constructive and communicative in maintaining the employment relationship, and therefore it is of the utmost importance to take the time to think about it, and then think about it some more.
Make your decision
Consider all the evidence and decide what the outcome will be. When you have made a preliminary decision you should discuss this with the employee and ask for their response. When you have considered their response, then only you can make a final decision. You can:
- dismiss the allegations
- give an informal warning
- give a formal warning
- if the conduct is serious enough, give a final written warning
- if the conduct is serious misconduct justifying summary dismissal, dismiss the employee with/without notice (this will depend on the seriousness of the conduct as well as what is set out in your employment contract/policies)
When deciding how to deal with the behaviour, consider what an objectively reasonable employer could do in your situation.
Detail your findings in a letter to your employee, noting what clauses or policies have been breached. State what may happen if the behaviour is repeated.
If the misconduct is repeated
If you witness or receive allegations of further misconduct by that employee, you’ll need to repeat the process above — whether it’s for the same behaviour, or something different. It is important to note that different types of misconduct by the same employee could potentially not be grouped together and relied on together to dismiss them. Only if it is a repeat of the same misconduct, can the repeat behaviour be deemed as sufficient cause to dismiss, and only after following a fair process, in accordance with the relevant policies or employment agreement clauses.
If the misconduct is proved again, depending on the type of misconduct you can:
- action the outcome stated in your last letter of findings
- issue another formal warning (there’s no limit to how many warnings you can give — it depends on the type of misconduct)
- issue a final written warning, stating that if the behaviour is to happen again, they may be dismissed
- if the misconduct is serious enough or has repeated often, you may want to consider dismissing your employee.
Always document any related conversations. You may not be able to rely on previous misconduct if it was not documented properly.
