How to dismiss an employee for misconduct

If you suspect an employee has committed misconduct that may force you to dismiss them or take other disciplinary action, you should address the issue as soon as possible. A good disciplinary process is a fair way of confirming whether your suspicions are correct, and if so, what should be done as a result.

A suggested disciplinary process under New Zealand law is set out below. This process should be followed by the person making the decision on behalf of the employer, who ideally should not have been a witness or otherwise involved in the matters to be investigated, and be free of bias.

Please note that the process suggested here will not cover every situation that may eventuate. If you get stuck, get legal advice. This process should be not construed as providing you with that legal advice for your specific situation.

1Gather the facts

When an allegation that an employee has done something wrong comes to your attention, don’t presume the employee is guilty. Instead, collect any facts that might show whether the allegation is true or not. Try to keep an open mind as you do this.

Find out if there were any witnesses to what happened, and if so, ask them to write and sign a statement of the events from their perspective. Where witnesses do want to disclose their identity, you need to decide to what extent you can still use the information they provide while balancing fairness to the employee who is the subject of the allegation.

Review the employee’s employment agreement and get copies of any relevant workplace policies, to see whether there are any terms in either type of document that the employee may have breached if the allegation is true.

2Check if you have a disciplinary policy

If the employee’s employment agreement or a workplace policy sets out how misconduct must be investigated and penalised, then you must follow those procedures and adapt the following steps to suit. For example, a policy may require that an employee is given a series of warnings before being dismissed for misconduct.

3WRITE A LETTER TO THE EMPLOYEE

The letter should include:

  • a detailed description of what is being alleged;
  • a list of any documents you are relying on to support the allegations. This may include witness statements and company policies that may have been breached. Be sure to enclose copies of these documents when you give the letter to the employee. Your description of the allegations and the supporting documents need to encompass all the information that will be relevant to your decision;
  • a statement that you have not made a final decision on whether the allegations are true. The letter should emphasise that you are treating the allegations very seriously, but that you will not decide whether the employee has committed misconduct until you hear and consider their response;
  • a statement that if you do find the employee has committed misconduct, then you may take disciplinary action, up to and including dismissal. This ensures the employee is under no illusion about the consequences that may follow if they are found to have committed misconduct. If you are not contemplating dismissal, but only a warning at worst, for example, then you should state that instead of referring to dismissal as the worst possible consequence;
  • a request to meet with the employee at a specified date to hear their response to the allegations. This should be at least two working days after the employee will be given the letter to give them sufficient time to consider their response and seek legal advice or arrange a support person;
  • an invitation for the employee to bring a support person or representative to the meeting if they wish to do so; and
  • details of who to contact if they wish to ask anything about the process. It may be that they need to contact someone to reschedule the time of the meeting if it is not suitable for them or their support person, or because they wish to give their feedback in writing instead of meeting with you.

NEED A TEMPLATE?

To make things easy for you, I have drafted a template letter that you can download right now for a small fee and reuse as much as you need. It has extensive guidance to help you complete it and includes a finished example. Click the button below to get it now.

4Meet the employee to give them your letter

At this meeting, read through the letter you drafted in the previous step and hand the employee a copy. End the meeting by reiterating that you expect to see the employee at the next meeting to hear their response.

If the employee starts to explain themselves, stop them and tell them that you do not want to hear their side of the story until they have had time to consider the allegations and to get legal advice.

A word on suspension

In some cases, before you end this second meeting, you may need to consider suspending the employee on pay while you carry out the disciplinary process. Your proposal to suspend can be referred to in your initial letter to the employee. You should only suspend the employee if:

  • it is really necessary to protect the integrity of the process, or if there is risk to property or people;
  • you have told the employee you are thinking of suspending them and given them a fair opportunity to take time to think about the proposal and to comment on whether they agree suspension is fair; and
  • nothing the employee says in response to your proposal to suspend them changes your mind.

You can find out more on issues relating to suspension here.

5Meet the employee to hear their response

At the second meeting, start by summarising the allegations. Reiterate that you are treating them seriously and that disciplinary action, up to and including the worst consequence you have previously named (whether that be dismissal, a warning or something else), may result if you decide the employee has committed misconduct. Then ask the employee for their responses to the allegations.

The purpose of this meeting is to hear the employee’s version of events. So you should listen carefully and take notes of what the employee says (it is best if you can have someone with you to take notes, so that you can concentrate on listening to the employee). If there is anything in the employee’s response that is unclear to you, ask the employee questions. But take care when asking questions to not give the impression you have already made up your mind.

At the end of the meeting, summarise what you believe you have heard the employee say and indicate when you wish to reconvene to advise the outcome of the disciplinary process.

6Consider the employee’s response

The employee may have suggested other people you should talk to, or other documents you should review. You should follow these leads if it is reasonable to do so. If you speak to other people, you should take statements from them and provide those to the employee for comment before reaching a decision.

If new allegations have come to your attention that you want to address together with the previous allegations already made, you will need to work through Steps 1 to 5 of this process again to gather the relevant information and present it to the employee for response before moving forward.

Once you have all the relevant information, decide whether you think the employee has committed misconduct. If there are no further leads to follow, this period of deliberation may be as short as, say, a 30-minute adjournment to the meeting. However, you should take an adequate period of time to consider everything before making your decision. It is typical for employers to allow at least a day to give such consideration to the employee’s response.

If you believe the employee has committed misconduct, go on to decide what you think the appropriate penalty should be – e.g. a warning, dismissal on notice, or dismissal without notice. Take into account such things as the employee’s length of service, their previous work record, their personal circumstances, the severity of the misconduct, whether your expectations were clear, and whether you have contributed to the event in any way when making this decision.

Dismissal without notice should only occur if the misconduct is so serious that you can no longer have trust and confidence in the employee going forward, e.g. if the employee has been deliberately dishonest, or has stolen from you.

7Meet the employee to give your decision

Tell the employee whether you think they have committed misconduct and why, and if so, what your preliminary view is on what disciplinary action (ie, warning, dismissal on notice, or dismissal without notice) should be taken, if any. Ask the employee whether they think the disciplinary action you are proposing is fair and appropriate before you make a final decision.

Once you have heard from the employee on that point, adjourn again for a period of time to consider whether anything the employee has said changes your mind about what disciplinary action you should take. It could be as short as, say, 10 minutes or so. Then return to the meeting and advise the employee whether you are proceeding with the action you proposed.

End the meeting by advising the employee that you will write to them to confirm your decision.

8Write a letter to the employee confirming your decision

In this letter you should summarise the allegations, the employee’s response to those allegations, and your decision and the reasons for it. Then go on to state what disciplinary action you have decided to take, if any. If you gave a preliminary view on the outcome and invited the employee to respond to that before reaching your final decision, you should refer to this in the letter also.

If you decide to dismiss the employee, advise what day is their last working day, whether they are to work out their notice period or be paid in lieu, or if they are to be terminated without notice for committing serious misconduct. You can only pay an employee in lieu of notice by their agreement or if their employment agreement gives you that right.

You can deliver this letter by email or mail – you do not need to meet with them if you do not wish.

If you want a template letter for this step, you can purchase one for immediate download by clicking the green button below.

NEED A TEMPLATE?

To make things easy for you, I have drafted a template letter that you can download right now for a small fee and reuse as much as you need. It has extensive guidance to help you complete it and includes a finished example. Click the button below to get it now.