It is well established in New Zealand’s employment law that there are certain things employers must do prior to justifiably dismissing an employee. These things fall into two categories, having a justified reason and following a fair process. It is not unusual to find cases where an employee’s dismissal is found by the Employment Relations Authority or Employment Court to be unjustified, not because there was no basis to take action against an employee but because the employer’s process was significantly flawed.
For example, in some cases, employers who haven’t sufficiently investigated allegations or given their employee a fair opportunity to explain their side of things, have been found to have breached proper process, which has ultimately resulted in the ERA determining that their dismissal of an employee was unjustified.
However, if an employer has carried out a fair process and ultimately reached a decision to dismiss, are they also required to tell their employee their preliminary decision and give them the chance to feed back on the same, prior to making a final decision?
While there is no obligation in the Employment Relations Act to do so, increasingly preliminary decisions are now seen as best practice, namely employers should provide a preliminary decision to their employees, including all details of any proposed disciplinary action, and allow their employees to give their feedback.
This helps ensure that the employee has had a full opportunity to comment on all relevant matters before a decision is finalised, which not only reduces risks to the employer (for example, they may have misunderstood something the employee said, which might change the employer’s decision) but also promotes good faith between the parties. Further, it enables the employer to think through their decision and the basis for it, in advance of taking final action, which is then binding on them.
If a preliminary decision is given however, it must not indicate that the employer has already made up their mind, as that will not constitute a genuine opportunity for the employee to provide feedback, including potentially changing the employer’s decision. In other words, it should convey that the decision is preliminary only and the employer will consider all feedback provided by the employee on it before deciding whether to proceed with the decision or not. Further, the employer must fully and genuinely consider the employee’s feedback on the preliminary decision before either confirming that decision or advising of a changed decision (such as to only issue a final warning, rather than to dismiss the employee).
In summary, we recommend that, once an investigation (into say misconduct) has concluded and a preliminary decision has been reached:
- this should initially be sent to an employee in the form of a preliminary decision letter, with the option given to either choose whether the employee’s feedback is provided in writing or in person.
- a reasonable amount of time is given to the employee between the preliminary decision being provided and feedback being due (this will be fact dependent but usually no less than 24 hours).
- sufficient time is taken to genuinely consider the feedback, once it is received, prior to making a final decision (again this will be fact specific).
If you require any assistance regarding starting a disciplinary process or advice in respect of making a preliminary decision, please do not hesitate to contact our employment team.
This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:
- Mike Henderson-Rauter, Senior Solicitor – firstname.lastname@example.org
- Hannah Carey, Senior Counsel – email@example.com