Managing disciplinary matters

I have never watched The Apprentice; there is something about Donald Trump that simply does not gel with me (the hair perhaps?). But rest assured, if a New Zealand business owner/employer was to suddenly bark at an employee Youre fired! chances are they would find themselves in deep, murky and fast moving waters  probably headed for the Employment Relations Authority as the employee claims unfair treatment.

Dismissal is the most serious outcome of a disciplinary process. Regardless of the eventual outcome, employers must have a legitimate concern and follow a fair and reasonable process when disciplining employees.

Disciplinary actions canully contesting a disciplinary action may be minimized. 

Seven step guideline

1.Be proactive  unaddressed disciplinary issues have a nasty habit of biting back. All of a sudden the situation becomes intolerable, but there is no record of prior disciplinary issues on the employees personnel file which means the employers options may be limited. Furthermore, it does not paint a positive picture if a disciplinary issue is finally investigated by the employer many months after the fact. 

2.Check the employees employment agreement and any relevant policies  these documents may outline a process that the employer is obligedto follow. If not, these guidelines area  general indication of the necessary steps. 

3.Document, document, document  this is much easier to do these days because an email trail may suffice. Alternatively, employers should keep typed or handwritten records. A document trail is a key component of a successful disciplinary process. If the outcome is contested bowed.  So each of these guidelines should be accompanied by documentation.

4.Tell the employee about the concerns employers should advise the employee of their concerns in writing and ask them to attend a meeting to hear the employees side of the story. Employees should also be advised that they are entitled to have a support person with them at the meeting(s).

5.Hear the employees side of the story  record the meeting in writing and ask the employee to sign the meeting notes to acknowledge accuracy. Investigate any issues that the employee has raised and consider their response (overnight at least).

6.Next, advise the employee of the decision  meet with the employee (and support person if they want one) and communicate the decision.

7.Lastly, employers should try to stand back and view the process as objectively as possible. If the employee claims that s/he has been treated unfairly, the Employment Relations Authority/Employment Court will scrutinize each and every step of the process to determine whether a fair and reasonable employer would have reached the same decision.

Disciplinary issues can affect customer perception, and, ultimately, the bottom line. The above is a guideline only to assist employers to navigate the often treacherous waters of the disciplinary process. It is a fluid process and may change according to the individuals involved. It is strongly recommended that employers take specific legal advice before and during a disciplinary investigation.      NZB

Emma Poyner is a senior solicitor with Kiely Thompson Caisley, a specialist employment law firm.Email [email protected].