Procedural Fairness Revisited


You may (or may not) have noticed this column missing for a few months. It was not because I was sick with Covid, but more that I was sick of Covid. After all, there are only so many columns one can bear to write about wage subsidies, vaccine mandates and changes in traffic light settings.

So now for something completely different. Well, not completely different as I have written about what constitutes a fair process before, and I thought by now most employers had got it. That was until a recent dismissal I dealt with which made me realise that was not the case, even in a big company with an HR department.

Learning what constitutes a fair process in employment law, will never be a waste of anyone’s time. You use it for redundancies, issuing warnings, suspensions and dismissals. In other words, when any action an employer is going to take is likely to result in a disgruntled employee.

Ever shaken your head in confusion when reading an article where an employee did something outrageous, yet still got awarded compensation? Invariably, it will not be because there was not a good reason to dismiss the employee, but that the employer went about it the wrong way. For an employer’s action to be justified, it needs to be both substantively justified (the why) and carried out in a procedurally fair manner (the how).

Let’s take a common example where an employee has done something wrong, which may result in a warning or a dismissal. The first, and often overlooked, step is always to dust off the employee’s individual employment agreement (‘IEA’) and check to see what’s in there in relation to disciplinaries. Some IEAs have very prescriptive terms that the parties agreed to when the employment commenced. Likewise, review any relevant policies. You must follow whatever is specified in the IEA or disciplinary policy to the letter.

Following that, the employee should be presented with a letter that clearly specifies what allegations are being raised against them. Attach to the letter all evidence the employer may rely on when making a decision on the disciplinary outcome (be it CCTV footage, GPS printouts, signed/dated witness statements and any other relevant evidence). The letter must also state that the employee has the right to bring a support person or legal representative to the proposed disciplinary meeting and must state the potential maximum outcome, so the employee knows how serious the matter is being viewed by the employer.

All of the above should be provided to the employee two to three days prior to a scheduled disciplinary meeting so that they have the opportunity to get legal advice and/or prepare evidence to counter the allegations. Also inform the employee that the meeting will be recorded, and they are welcome to record it also, or the employer will provide them with a copy after the meeting.

During the meeting, listen to the employee’s explanation with an open mind. Predetermining the outcome of a disciplinary investigation is one of the most common breaches of procedural fairness, and is often disclosed inadvertently by an employer, even when they think they are cleverly disguising their true view of the matter.

The employer is free to question the employee where they need more information or where what the employee is saying, is not stacking up against the evidence. Do not introduce new evidence during the meeting and expect the employee to come up with an answer on the spot. If new evidence arises between sending the disciplinary letter and the disciplinary meeting itself, provide it to the employee and reschedule the meeting so the employee has time to consider it before the meeting.

Only once you have all the information, can you then go on to consider matters carefully and make a decision on whether the allegations are upheld and what the sanction should be. Do not make the decision at the end of the disciplinary meeting but let the employee know you will endeavour to make your decision as soon as you can (usually within 24 to 48 hours).

Where the sanction is serious such as a final written warning or dismissal, an additional step is recommended where you provide the employee with a letter that contains preliminary findings about whether the allegations are being upheld and a proposed outcome, and reasons for both. Allow the employee the opportunity to respond to the preliminary findings and proposed outcome, either in writing or in another meeting, and consider those responses before making and conveying the final decision.

Where a suspension is involved, the same process above applies but in truncated form. First, check the IEA. If there is no clause allowing suspension, then it will be unlawful so don’t even go there. If there is a suspension clause, you need to still carefully consider whether there is good reason why the employee cannot remain in the workplace during the disciplinary investigation (and the grounds are very limited).

You can propose suspension in the initial disciplinary letter, clearly stating the reasons the employer considers it necessary, advise the employee they can seek legal advice, and ask them to respond to the proposal (either in person or in writing) prior to making and conveying the final decision on suspension, usually within 24 hours of the letter being given to the employee.

If still in doubt, call a specialist employment lawyer or Google it. There is simply no excuse these days for an employer failing to follow a basic fair process when there is ample information a mouse-click away.


About Author

Erin Burke

Employment Lawyer and Director at Practica Legal Email: erin@practicalegal.co.nz phone: 027 459 3375