Misconduct

Procedure when Misconduct is alleged

Where there is an act of misconduct this generally activates a progression of warnings. The progressiveness of warnings is usually stipulated in the employment agreement or house rules. If the warning process is specifically provided for it is essential that this be complied with to the letter. Failure to comply with your own disciplinary procedures may render any action taken as being procedurally unjustified.

Each warning should involve the following steps:

• Putting the allegation including all the known details in writing before the employee, and
• Advancing a time and place for disciplinary meeting, and
• Inviting the employee to bring a support person / representative, and
• Giving the employee the opportunity to respond at the meeting, knowing
• What has been alleged, who will be involved in the decision making and what the outcome could be if the employer is satisfied that misconduct has been established.

• Putting the allegation to the employee and inviting the employee's response.
• Considering the employee's response, and adjourning if necessary to corroborate claims, or adjourning if necessary to investigate further, and
• Advising the employee whether their explanation is adequate or inadequate, and inviting the employee to reconsider their response in light of the consequences if misconduct is established, and
• Consider the employee's explanation (which should involve an adjournment), and
• Communicating your decision and the reasons for that decision, and explaining the implications (duration, scope, re-offending) of the disciplinary action being taken.
• Remember the new test for justification for the dismissal under s103A of the Employment Relations Act 2000, which requires the employer to show they considered all the factors of that situation and remember to list the factors you considered for example:

The employee's length of service; whether it will it happen again; whether other employees work with that person; If the employee is in a position of responsibility, will the staff respect that person after the incident; was the employee honest and co-operative in the investigation (and that issue was put to them); their previous work record; what happened with other employees in similar circumstances; and is the matter so important that a firm precedent needs to be set (e.g. unsafe work practices)

• Completion of written notification to employee of disciplinary action being taken, and completion of notes and supplementary records in personnel file.

If the employee is sitting on a final warning either by reason of exhausting the progressive warnings or by reason of an earlier serious misconduct, it is important that the employee be advised prior to an investigation that an unsatisfactory explanation may result in dismissal.

Where you are contemplating dismissing an employee on the basis of a series of warnings, you must be able to establish that each warning was justified.

Procedure when Serious Misconduct is alleged

The disciplinary process involving an allegation of serious misconduct is relatively short (compared with misconduct), but the requirements for procedural fairness are stricter and so may involve more time. Generally, there are no warnings required in a disciplinary process for serious misconduct. As discussed above, in most instances, the likely consequence for the employee of a finding of serious misconduct is summary dismissal. This means that the standard of proof is high. Further, the more serious an allegation is, the more rigorous the investigation should be, and, the more certain the employer should be that the employee is responsible for the serious misconduct. Where the employee admits the serious misconduct at a properly convened meeting there is no need to spend more time investigating the matter.