Harmans Lawyers
08 May 2023

Beware the Disciplinary Process

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The recent Employment Relations Authority (“Authority”) decision of Adams v Properly Plastered Limited (“Adams”) provides employers with a timely reminder that when pursuing disciplinary action against an employee an appropriate process must be followed.  This is a statutory requirement and applies even if the facts appear straightforward or a warning (verbal or written) is likely.  Ultimately, if an appropriate process is not followed then, whether or not the action or dismissal relied upon is substantively justified, an employer remains at risk of having to pay compensation to its employee.

This is what occurred in Adams, where the employer issued a number of verbal warnings to the employee for unauthorised absences from work and poor attitude.  These warnings were followed up by a final written warning for unauthorised absence and then dismissal for the same reason.  There was no dispute that the absences occurred.

In terms of the verbal and written warnings issued by the employer, the Authority noted that while meetings were held to discuss each incident, the employee did not receive any prior warning of what each meeting was about.  Nor was he told that he had the right to bring a support person, or that a written record of each verbal warning was being kept.  Accordingly, the Authority found that the employee was not provided with a reasonable opportunity to respond, that a fair process had not been followed and that the warnings were unjustified.  The employer’s decision to dismiss was therefore based on a final written warning that was unjustifiable.  The Authority also found that there was no evidence that the employer had undertaken a sufficient investigation before dismissing the employee or that it had put its allegations to the employee and provided him with a reasonable opportunity to respond.  While the Authority determined that the decision to dismiss was substantively justified, the dismissal was still found to be unjustified given the process used, and compensation of $7,000 (reduced to $2,100 by way of contributory conduct) was awarded to the employee.

The above case provides a cautionary warning to all employers to ensure that if an employment relationship problem does arise, an adequate disciplinary process is employed to investigate the issue and allow the employee a reasonable chance to respond to any allegation.  As this is difficult to get right, legal advice should be sought at an early stage on the process to be adopted.


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