The must do’s describe very important ways of working with each other. If all parties understand and are guided by these, they should be able to build a constructive, healthy employment relationship. These must do’s also provide guidance for working with others in more challenging situations, such as managing performance issues, workplace change or a disciplinary process.
Employers and employees must deal with each other in ‘good faith’. In particular, employers must have a ‘good reason’ when taking disciplinary action or structural change, and they must follow a ‘fair process’ in doing so.
Employees, employers and unions are obliged to deal with each other at all times in good faith. Every action taken by an employer and an employee must be done in good faith.
Not misleading or deceptive
Parties should be careful and make sure that whatever they do or say is truthful and should not mislead the other party.
- Employers should be honest about the reasons for taking disciplinary action against employees. They should not act with hidden motives.
- Employers should be honest about the process used when investigating allegations of misconduct. For example, if they say they are going to use an independent investigator, this person must be truly independent.
- Misleading behaviour can include a decision to withhold information. Where an employee is under investigation, all available evidence should be presented, even if that evidence works against them. For example, an employer should not withhold evidence which supports the employee’s account of events.
- When an employee is under investigation, no false evidence should be presented.
- When parties are agreeing to a variation of an employment agreement, employers should be upfront about exactly what they are changing and what is being added or removed.
- If a union decides to call off a strike, they should inform the employer as soon as possible and not leave it until the last minute.
Be responsive and communicative
Being ‘responsive and communicative’ is a wide duty
- raising concerns as soon as possible with each other, before taking any other action
- responding to any concerns when they are raised
- clarifying any uncertainty quickly
- responding to questions or issues raised during an investigation or disciplinary meeting
- if an allegation is put to an employee, generally they should offer an explanation unless the employee is facing criminal charges.
Decisions which might cause job loss
When an employer is making a decision which might cause certain employees to lose their job (such as a disciplinary process or a change process), the employer must:
- provide those employees with access to relevant information about the decision, and
- give them an opportunity to comment on this information
What is relevant information will depend on the circumstances. It is usually the information that the employer will consider before making a decision. It is more than just telling the employee about the allegations of misconduct or the need to restructure. The employer needs to provide specific evidence.
This may include:
- interview notes
- statements about behaviour from other people
- video surveillance footage, financial information
- change proposal.
It is important that employers and employees have regular and ongoing communication. This should include catch-ups to review progress, and discuss successes and challenges.
Regular performance reviews during the year makes sure employees have a clear understanding of how they’re going against their targets and agreed standards.
Giving and getting feedback
Giving quality feedback and being open to feedback will make it easier to improve and develop performance.
Positive conversations and reaching agreement
Resources for having positive conversations and achieving good outcomes: active listening, creative thinking, asking critical questions, exploring concerns and interests, constructive conversations.
For an employer to take any action against an employee they must have a genuine or valid reason.
Good reason is sometimes called substantive justification. For an employer’s action to be considered fair they must make sure that they meet the two aspects of ‘good reason’: These are that:
- they believe there is a valid reason to begin the action or process; and
- any decision that is made is for a good and fair reason.
An employer’s reasons for the action must be what a fair and reasonable employer could have done at the time of the dismissal or action. To ensure fairness in the circumstances, before making a decision the employer needs to ensure:
- that they have all of the facts that they can reasonably gather
- that they have heard the employee’s response to those facts
- that they have considered how they have acted in similar circumstances, and
- they have taken any other relevant considerations (such as length of service, any mitigating circumstances etc).
Every situation must be considered on its own facts and in context of the workplace.
For example, generally it might not be reasonable to dismiss an employee instantly for a one-off instance of what might be viewed as a trivial action; however this can be different depending on the situation. An example might be theft of social club funds. An employer that is a bank, and where the employee has access to money, is likely to consider this differently to a large building contractor employing a carpenter. The situation may be different again if this did not occur in the workplace, but went through the courts and was widely published. Every situation must be carefully considered on its own merits and following a fair process.
When undertaking any action against an employee, the employer must follow a fair process.
Making sure that a fair process is followed is as important as making sure that there is a good reason for taking an action. The employer and employee must also both act in good faith throughout the process. Fair process is sometimes referred to as procedural fairness.
What a fair process involves
When taking action against the employee, the employer must follow the requirements of the Employment Relations Act 2000 and natural justice. This means that the employer must:
- fully investigate the concerns, taking into account the resources that they have to do this
- properly raise their concerns with the employee. This involves telling the employee exactly what the problem is, providing all relevant supporting information and telling them that disciplinary action is a possibility
- give the employee a reasonable opportunity to tell their side of the story, and
- genuinely consider the employee’s explanations (if provided).
The employer should also:
- make sure the decision maker is as impartial as possible
- tell the employee that they may have a representative or support person present at any disciplinary meetings
- give the employee an opportunity to seek independent advice throughout the process
- give the employee an opportunity to give their explanation or response to the person who will make the final decision
- not make the decision on what action to take until after hearing and considering the employee’s response to the proposed course of action
- treat employees without bias and in a way that takes into account any similar situations that have occurred
- consider all options before making a final decision.
It is important to note that both parties must also comply with the duty of good faith during this process. In particular, the parties must be responsive and communicative.