Fair process

A fair process will usually involve the following:

Provision of information – employees must be given the information the employer is relying on when considering dismissal or disciplinary action.

Opportunity to comment – employees should be given an opportunity to comment on that information, and an opportunity to provide any other information that might be relevant. This includes being given sufficient time to consider the information provided and to prepare a response. The employee should be given an opportunity to comment on the outcome of any investigation before any decision is made.

Promptness – any action should be taken as soon as practicable after the event.

Representation – employees should be told in advance that they can be represented (e.g. by a union delegate, lawyer or friend) when being asked to comment on a proposed dismissal or disciplinary action.

Open mind – the employer must listen to the employee’s comments with an open mind and consider all relevant information. This means that, before the employer makes a decision, the employer must carefully consider what the employee has to say.

Relevant considerations – the employer must take into account all relevant matters, and must not take into account matters that are not relevant.

Even-handed treatment – the employer should generally treat similar situations in the same way (e.g. if two employees engage in the same misconduct they should receive the same treatment), unless there is a good reason for treating them differently.

Access to decision-maker – the employee should be given an opportunity to address the person who is making the decision. The decision-maker may get someone else to undertake part of the process (e.g. appoint someone else to undertake a fact-finding investigation), but must personally consider what the employee has to say. The decision-maker should also personally advise the employee of his or her decision.

Alternatives – the employer should consider alternatives to dismissal or disciplinary action before deciding on what action should be taken.

If the problem goes to the Employment Relations Authority or the Employment Court, they will look at whether the employer was being fair and reasonable in the disciplinary or dismissal action.  In particular they will consider whether:
  • the employer investigated sufficiently, taking into account the resources of the employer to do that
  • the employer raised their concerns with the employee before taking the disciplinary action or dismissing the employee
  • the employer gave the employee reasonable opportunity to respond
  • the employer genuinely considered the employee’s explanations.
When meeting as part of a disciplinary process, employers and employees should each have a support person present, and should take accurate notes of what is discussed and agreed.

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