When you are concerned that your employee’s conduct could be misconduct or you receive a complaint about an employee’s conduct, then you must take certain steps in order to make sure that the employee disciplinary process is fair. If you don’t follow the New Zealand’s disciplinary process, then you are likely to run into issues with your employee. The same is the case with not dealing with the employee with good faith in a fair manner.
Following are the steps of the employee disciplinary process that you should follow to make sure that the process is fair:
1. Review the Employment Agreement
It is highly recommended that you review your employment agreement to learn what is required to be taken for misconduct. This is important because if a prescribed process in the employment agreement is not followed, then an employee may have grounds to lodge a personal grievance.
2. Consider the Conduct
If your employee’s conduct is sufficiently serious or their presence in the workplace could hinder your investigation, then the employment contract allows that you warrant a suspension of the employee. However, if the agreement does not provide the ability to suspend, then the suspension would only be warranted and justifiable in very limited circumstances.
The nature and manner of the complaint has to be investigated confidentially and promptly and you should gather all relevant information by interviewing all witnesses. It is also your obligation to inform the employee before the start of the investigation that you will be investigating. You should explain to the employee the details of the allegations, their seriousness, and that they may need a representative to be present at all meetings.
You should give the employee at least 24 hours advance notice of the meeting and inform in writing of the following:
- The nature of the complaint.
- The potential outcome of the meeting.
- That the employee must bring a representative to the disciplinary meeting.
4. Disciplinary Meeting
The disciplinary meeting provides you the opportunity to raise your concerns and detail the complaint to the employee in question by providing evidence gathered via your investigation. You should give the employee an opportunity to respond to the allegations.
In the disciplinary meeting, set out the concerns and allegations and invite the employee to respond. If the employee gives an explanation that gives rise to further investigation, then it is recommended that you adjourn the meeting so you can further investigate. If you proceed to further investigate, make sure to give the additional information to the employee so he/she can comment on it.
5. Decide Whether the Alleged Conduct is Substantiated
After the meeting, you should take all of the evidence (including the responses of the employee) and decide on the balance of probabilities whether the alleged conduct is substantiated. You should wait at least 24 hours from the time of the meeting to communicating an initial decision. It is recommended that you use this time to give the matter objective consideration.
6. Decide on the Appropriate Course of Action
Depending on the conduct as well as the terms of the employment agreement, you will need to decide what action (if any) should be taken. If you have concluded that the allegation has been made out, then you should inform the employee of the initial decision and give him/her a chance to respond on the proposed outcome. You should also adjourn the meeting for at least a couple of hours before making a final decision so that you can consider any further comments made by the employee. After that, you should communicate the final decision to the employee and confirm it in writing.
Tips for Employee Disciplinary Process
Now that you know what the employee disciplinary process entails, here are some things you should keep in mind:
- You as an employer, cannot dismiss an employee without first going through a disciplinary process, regardless of how serious the allegation is.
- If an allegation is serious and requires the employee to be suspended, then you should suspend the employee while you go through a disciplinary process.
- Always follow the disciplinary process that is agreed to in employment policies or agreement.
- You cannot discipline an employee if he/she is genuinely ill. Such cases should be dealt with via a medical incapacity process.
- Always be reasonable and fair. Sometimes there may be an honest explanation for suspicious circumstances.
The employee disciplinary process described above is basically of a generalized nature. For any particular situation, it is recommended that you seek advice that is related to your specific situation.