Facing a disciplinary meeting or misconduct allegation? The employer should investigate properly, identify the allegations and evidence, give a genuine opportunity to respond, and keep an open mind before deciding on a warning or dismissal.
A disciplinary process is used when an employer is considering action over alleged misconduct or serious misconduct. The employee should know what is alleged, what evidence is relied on, what outcomes are possible, and have a genuine opportunity to answer the case before a decision is made.
The meeting should be an opportunity to hear the employee rather than a ceremony confirming a decision already made. The employee or representative can challenge factual assumptions, explain context, identify missing evidence, raise inconsistencies and put forward mitigating circumstances.
If new allegations or important new evidence appear during the meeting, it may be necessary to adjourn so the employee has a fair opportunity to consider and answer them. A decision-maker should genuinely consider the explanation and any further investigation it requires.
Employers sometimes mix these concepts together. Misconduct concerns behaviour. Serious misconduct is conduct sufficiently serious to potentially justify dismissal without notice. Poor performance is ordinarily dealt with through a forward-looking performance process, not simply relabelled as misconduct because an employee has failed to meet expectations.
The label used by the employer is not decisive. What matters is what happened, what standard applied, what the evidence established, and whether the action taken was what a fair and reasonable employer could have done.
There is no universal rule requiring a fixed number of warnings in every disciplinary case. The employment agreement, policies, seriousness of the conduct, prior valid warnings, consistency and proportionality all matter. A warning can itself amount to an unjustified disadvantage if it was not justified.
If dismissal is being considered, the employer should normally reach a preliminary view, give the employee an opportunity to respond to the proposed outcome, and genuinely consider that response before the final decision.
In a disciplinary meeting an employee has rights to procedural fairness and to be fairly heard. We represent employees at disciplinary meetings.
Serious misconduct is not just a label. Post-21 Feb 2026 it can zero out remedies. Here is a practical advocate framework to classify conduct as serious misconduct (or not) and to run the right process arguments.
Consumption of alcohol and bad behaviour at Christmas functions is not uncommon. Employment Relations Authority decisions involving Christmas party incidents that have led to disciplinary action up to and including dismissal.
Brent Colyer had worked for New Zealand Aluminium Smelters Limited as an electrician for almost 20 years. After he inspected a gantry crane without first isolating a related 35-tonne crane, NZAS investigated and issued a written warning. The ERA found the disciplinary process was unjustified and breached good faith. NZAS had blurred an informal incident investigation into a disciplinary investigation, failed to collect basic statements, allowed an uninvestigated concern about Mr Colyer's attitude toward a colleague to become central, failed to provide the correct investigation report in advance, and then accidentally gave him a draft report containing an outcomes section. Constructive dismissal failed, but unjustified disadvantage succeeded. NZAS was ordered to pay $18,000 compensation...
Aaron Potter was summarily dismissed by Talley's Limited after a complaint connected with an election for a health and safety representative. The ERA found Talley's had not properly investigated the complaint, had not clearly set out the allegations or supporting information, had not given Mr Potter a fair opportunity to respond, and could not reasonably conclude that he had bullied, intimidated, or attempted to influence the vote. Mr Potter was awarded $20,000 compensation and $7,226.25 gross lost remuneration, no contribution was found...
A sales manager was put on 'special leave' while four bullying/harassment complaints were being investigated, but his phone and laptop were taken and he was removed from the workplace without prior consultation. Five days later he was dismissed for serious misconduct without being given the...
An anonymised Christchurch ERA determination where the Authority found constructive dismissal after an unfair suspension, a misleading complaint outcome, and a disciplinary process that did not fairly disclose the case the employee had to meet.
