Manawatu Employment Law Services
+64 6 3484811


Employers often think that if an employee is guilty of serious misconduct, such as stealing, turning up for work intoxicated or under the influence of drugs, for example, then it is justifiable to sack him/her on the spot.  This is not, however, necessarily the case.  The Employment Relations Act 2000  states at sec.103A ss3, that an employer must sufficiently investigate allegations against an employee before dismissing.  The purpose of such an investigation in the case of possible instant dismissal is to establish whether the conduct in question does, in fact, amount to serious conduct .  If this is indeed proven, then the employer is still required to lay the allegations before the employee and give time for the employee to respond.  This may require sending the employee home for a period, giving him/her time to consider and seek advice.  Having then heard the employee’s explanation, the employment courts have determined in various cases that a fair and reasonable employer (which to be is a statutory requirement) could consider other alternatives to dismissal, such as demotion, further training, reassignment of duties, or any other option that is feasible. 

From the above, it can be seen that dismissing someone on the spot does not fulfil the statutory obligations an employer has.  Faced with behaviour so unacceptable that it cannot be reasonably tolerated, an employer is better off sending an employee home on pay, giving each party a cooling off period and time for both to consider their responses.

Another important factor in considering dismissal is whether an employer has a provision in an employment contract for ‘instant’ dismissal based on serious misconduct.  This would be a sensible provision to have as it shows that the employee has foreknowledge of what to expect in the event of certain behaviours.  A code of conduct can further spell out specific examples that an employer will not tolerate in the workplace.

As always, a well written employment contract with accompanying documents such as a code of conduct, and a clearly understood process to follow in the event of things going wrong will go a long way towards avoiding a personal grievance claim for unjustified dismissal.

Posted: Fri 31 May 2019


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