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Part 1: Getting it Right - Disciplining Employees

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Disciplinary action is a step that is open to an employer when an employee's behaviour, deliberately or unintentionally, ignores or breaches the requirements of their employment agreement or organisation's policies or rules, or behaves in ways that are unacceptable to the employer.

Disciplinary action may also be taken where, despite plans put in place to help the employee improve, the employee's work performance does not meet the required standards or levels of job performance. This will be discussed in a separate blog series on Performance Improvement Plans.

Taking action against an employee is a serious step to take and should not be approached lightly. Getting it wrong can have huge implications for the employer and damage trust among employees.

You must have a genuine and justifiable reason for commencing disciplinary action. If you cannot justify your actions, you will have no grounds for defending your actions should the employee challenge you.

The Good Faith section of the Employment Relations Act 2000 sets out the rules on how employers and employees should deal with each other. These are:

  • you must deal with each other in good faith; and

  • without limiting the above, the employer and the employee MUST NOT, whether directly or indirectly do anything:

    • to mislead or deceive each other, or

    • that is likely to mislead or deceive each other.

Both employer and employee must be active and constructive in their employment relationship, meaning that among other things you must be responsive and communicative with each other.

For you, the employer, if you are contemplating taking action that will or is likely to have an adverse effect on the employee's employment, you must provide the employee with access to all the relevant information you are going to rely upon for making your decision AND you must give the employee an opportunity to comment on the information before you make any decision.

What does this mean in the context of commencing disciplinary action? First, you must be able to describe the actions/behaviour/conduct that is of concern and also describe how you believe this ignores or breaches the requirements of the employee's employment agreement and/or your company policies or rules, or why the alleged behaviour is unacceptable to you. If there is any supporting documentation or other evidence (e.g a statement from another person), that should also be provided to the employee.

You need to ensure you afford your employee all their rights before making any decision on the matter that is concerning you. The employee has the right to see and/or have access to all information you intend to rely upon in making any decision about what they have allegedly done. This includes CCTV footage if that is being relied upon. The employee needs to have an opportunity to respond to all that information and present their response to the concern(s) you have raised. You also need to advise the employee of the right to have an independent support person and/or a representative present when they meet with you.

Ideally, you should give your employee at least 24 - 48 hours' notice of any disciplinary meeting so they have time to review the information you have and time to seek independent advice and support.

The clearest way of ensuring you comply with your good faith obligations is to set out an invite to a disciplinary meeting in a letter. The letter should specify the following:

  • What your concerns are.

  • How the actions/behaviour/conduct breaches any employment obligations and/or policies and rules.

  • What the potential outcome might be if you are not satisfied with the employee's response

  • Advice that the employee is entitled to have a support person and/or representative with them when you meet.

  • That you will consider their response before making any decision on the matters of concern.

  • When and where the meeting will take place.

  • Who else will be attending the meeting to support you, if relevant.

If the employee requests additional time to enable their support person/representative to attend the meeting, provided the request is reasonable, then you should agree to this. It is better to delay by a few days than to charge ahead only to get challenged on your actions.

The above steps apply regardless of whether the concerns are misconduct or serious misconduct.

With alleged serious misconduct, you need to act sooner rather than later, as delaying addressing the alleged concern only undermines the seriousness of the matter. With serious misconduct allegations, you may need to consider whether suspension is appropriate. This not always going to be the case, however if safety of staff or security issues arise, suspension is an option that is available. Read about suspensions here.

In Part 2 of "Getting it Right" we will discuss the Disciplinary Meeting.

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