How to run a fair disciplinary process in NZ

The two tests: good reason and fair process

Section 103A of the Employment Relations Act 2000 asks whether the employer’s actions, and how it acted, were what a fair and reasonable employer could have done in all the circumstances. You need both a substantively good reason and a fair process to reach it.

From 21 February 2026, a minor procedural error on its own should not make a dismissal unjustified if the employee was still treated fairly overall. That lowers the risk from immaterial slips, but the core requirement, a genuinely fair process, is unchanged.

Step by step

1. Investigate first

Establish the facts before you form a view. Gather documents, talk to relevant people, and keep the investigation separate from the decision where you can. Do not decide the outcome before the employee has had their say.

2. Put the concerns in writing

Set out the specific allegations or concerns in writing, along with any evidence, and invite the employee to a meeting to respond. Tell them the possible outcomes, including that dismissal is a possibility if it genuinely is.

3. Hold the meeting, with support

Give the employee a fair chance to prepare and the right to bring a support person or representative. Listen properly to their explanation and any mitigating factors.

4. Genuinely consider the response

Keep an open mind. Consider the employee’s explanation, mitigating circumstances, their record and consistency with how others have been treated. If new issues emerge, put them to the employee before deciding.

5. Decide and communicate fairly

Reach a considered decision, tell the employee in writing with reasons, and set out any right to raise a personal grievance. Match the outcome to the seriousness of the conduct.

Misconduct vs serious misconduct

Misconduct is behaviour that warrants a response but not immediate dismissal, and is usually managed with warnings and support to improve. Serious misconduct is conduct that fundamentally undermines the employment relationship, such as theft, violence or serious dishonesty, and can justify summary dismissal (dismissal without notice).

Even for serious misconduct, a fair process is still required. Summary dismissal means without notice, not without process. Define serious misconduct in your policies and employment agreements so expectations are clear.

Common mistakes that create grievances

• Deciding the outcome before hearing the employee’s response (a predetermined decision).
• Not putting the specific allegations in writing, so the employee cannot properly respond.
• Denying or discouraging a support person or representative.
• Skipping steps because the conduct “obviously” warrants dismissal.
• Inconsistent treatment compared with other employees in similar situations.