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Are you considering dismissing an employee for serious misconduct in New Zealand? You need to understand whether the employee’s action or inaction is serious enough to warrant ‘serious misconduct’ and follow the procedural steps before deciding whether to dismiss them. You can dismiss an employee without notice if they have engaged in serious misconduct. Dismissing an employee can be quite a complex process and you want to make sure you get it right. This article will:

  • define serious misconduct;
  • compare misconduct and serious misconduct;
  • outline the procedural requirements; and
  • outline what summary dismissal is.

What Is Serious Misconduct?

Serious misconduct is where the conduct of the employee can have the effect of destroying or undermining the relationship of trust and confidence between you and your employee. Often it is more likely for it to be serious misconduct where it can impact the employee’s ability to perform their job. 

For example, if an employee has stolen money and their job requires them to work in a position of trust, this may be serious misconduct.

Misconduct and Serious Misconduct

Some misconduct may not be sufficiently serious to be labelled serious misconduct. Some employment agreements or workplace policies list examples of serious misconduct. It is important to note that even if something is listed as serious misconduct in a document, it may not always constitute serious misconduct in practice. You can also still dismiss an employee for serious misconduct even if the employment agreement does not specify that behaviour as serious misconduct. Whether conduct amounts to serious misconduct should be assessed on a case by case basis depending on the facts.

Below are some examples of misconduct and serious misconduct. Depending on whether the conduct is serious misconduct or not will affect how you respond and whether you take disciplinary action or consider dismissal.

Misconduct Serious misconduct
  • Violence
  • Bullying and harassment
  • Theft or fraud
  • Behaviour that endangers the health and safety of the employee or others
  • Serious breaches of the employment agreement
  • Being intoxicated at work
  • Dishonesty
  • Repeated misconduct

Misconduct outside of work could lead to disciplinary action or dismissal if the conduct:

  • damaged the relationship of trust and confidence between you and the employee;
  • brought your business into disrepute; or
  • is not appropriate for the employee to be doing their job correctly.

Procedural Requirements 

There are four key processes to consider when dealing with serious misconduct. The court will consider whether you:

  1. have sufficiently investigated the allegations against the employee (e.g. by interviewing witnesses, gathering documentary evidence or checking policies);
  2. raised the concerns that you had with the employee and notified the employee of any allegations;
  3. gave the employee a reasonable opportunity to respond to your concerns or allegations; and
  4. genuinely considered the employee’s explanation in relation to the allegations with an open mind and in good faith.

The court will look at whether your actions were what a fair and reasonable employer would have done in the circumstances. 

Summary Dismissal

Once you have gone through the procedural requirements with your employee, you can then decide whether their conduct amounts to serious misconduct. If it does, you can dismiss the employee without:

  • providing them notice;
  • allowing them to work their notice period; and 
  • pay for their notice period. 

This is called ‘summary dismissal’.

Key Takeaways

When deciding whether an employee’s action or inaction has amounted to serious misconduct, you need to follow a strict process to review their misconduct before making a decision. Once you determine whether serious misconduct has occurred, your response must be fair and reasonable. If you have any questions about serious misconduct or the dismissal process in New Zealand, contact LegalVision’s experienced employment lawyers on 1300 544 755 or fill out the form below.

FAQs

What is serious misconduct?

In New Zealand, serious misconduct is where the conduct of the employee can have the effect of destroying or undermining the relationship of trust and confidence between you and your employee. 

 What is the difference between misconduct and serious misconduct?

Some misconduct may not be sufficiently serious to be labelled serious misconduct. Whether conduct amounts to serious misconduct should be assessed on a case by case basis depending on the facts.

What is summary dismissal?

If you decide that an employee’s conduct amounts to serious misconduct, once you have gone through the procedural requirements with the employee you can dismiss them. This is known as summary dismissal.

What are the procedural requirements for summary dismissal?

As employer, you must investigate the conduct, raise your concerns with the employee, give them a reasonable opportunity to respond and genuinely consider their explanation before proceeding to summary dismissal.

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