The Disciplinary Process - The Opportunity to be Heard
One of the key procedural requirements that an employer should follow during a formal disciplinary process is to provide the opportunity for the employee to be heard.
This was one important requirement provided in the case of NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd. In this case the former Labour Court had stated that an employer must provide “…an opportunity, which must be a real as opposed to a nominal one, for the worker to attempt to refute the allegation or to explain or mitigate his or her conduct.”
It is well established that the opportunity to be heard must be provided to the employee prior to the employer making a decision on the disciplinary outcome. There is also the statutory obligation under the Employment Relations Act 2000 for an employer to act in good faith and provide an employee with an opportunity to comment on any decision which may have an “adverse effect on the continuation of the employee’s employment.”
In the vast majority of cases, an employee will want to provide a response to disciplinary allegations and will co-operate with the employer’s procedure. However, there have been situations where an employer has commenced a disciplinary process involving an employee, only to find that the employee refuses to comment at all, or fails to attend a formal meeting to explain their behaviour. This may even be used as a ploy to delay the process or have the employer abandon the issue altogether.
Two recent Employment Relations Authority cases demonstrate how taking the time to afford the employee an opportunity to explain their behaviour will place the employer in a strong position in the event a personal grievance is taken by an employee who has not co-operated with the employer’s disciplinary process.
In Simons v Halswell Tavern & Retail Liquor Ltd, an employer had raised allegations of serious misconduct against an employee, Ms Simons, regarding various instances of what the company considered to be inappropriate behaviour. The employer in this case attempted to hold formal meetings with the employee on numerous occasions and had written to her to outline its findings and requests for her response. She did not engage with the employer’s process and argued on different matters of detail.
After attempts to obtain responses proved unsuccessful, the employer in the Halswell case wrote to Ms Simons and advised that its preliminary decision was that serious misconduct had occurred and that it was considering dismissal. A further opportunity was provided to respond, however no specific explanation was given in response to the allegations. The employer then confirmed its decision to dismiss Ms Simons. The Authority found that the Ms Simons was not unjustifiably dismissed and had been given more than an adequate opportunity to be heard on the allegations. By refusing to engage with the employer regarding the allegations, she had not acted in good faith.
In Wilson v Pet Stay Ltd, the Authority considered personal grievance claims of unjustified dismissal and disadvantage from Ms Wilson, who had been dismissed for serious misconduct without actually attending a disciplinary meeting. Evidence before the Authority demonstrated that there had been four attempts to have Ms Wilson attend a disciplinary hearing. Prior to its final attempt to meet with the Ms Wilson, the company advised her nominated representative that if she failed to attend, a decision would be made on the information the company had available to it. Ms Wilson indicated she would not attend and the company then made the decision to dismiss her.
In the Pet Stay case, the Authority found that the company’s decision to dismiss Ms Wilson was what a fair and reasonable employer could do in the circumstances. The Authority determined that Ms Wilson had acted unreasonably by not being responsive and communicative (i.e. not acting in good faith) during the process, and had no genuine reason to not attend a disciplinary meeting and explain herself.
An employee who refuses to co-operate with an employer’s disciplinary procedure can create a real headache for an employer. However where an employer does give the employee a reasonable opportunity to provide an explanation to disciplinary allegations(s) and the employee does not engage and provide a response, an employer may still be justified in making a final decision as to the outcome.
Business Central advises that a cautious approach is taken initially when dealing with employees who fail to co-operate with a disciplinary procedure. A fair and reasonable employer will seek a full response, and there is still the expectation that there will be a genuine basis to raise a disciplinary allegation against an employee in the first instance. These factors were present in both the Simons and Pet Stay cases which were relevant to the decisions reached by the Authority.
It should further be noted that if there is a genuine reason the employee can cite for not providing an explanation to a disciplinary allegation (for instance, a lack of sufficient time or information given by the employer) it will be unreasonable for an employer to make a final decision as to a disciplinary outcome at that point. The same principle would apply if the employee is genuinely unable to attend a disciplinary meeting to explain their behaviour.
To avoid the potential for successful grievance actions, a fair and reasonable employer needs to not only provide an employee with the opportunity to be heard, but should also ensure the rest of its disciplinary procedure is instigated in accordance with current legal requirements.
Guidance on such processes can be sought from a Business Central consultant on our
Adviceline on 0800 800 362.
For more information
Contact Darren Mitchell, Senior Consultant: