If you are an employer, there is a good chance you have had the thought that it is hard to dismiss employees in this country. You sense that the law is skewed against you and in favour of employees.
To some extent that is true: there is a natural imbalance of power in relationships of employment that the law attempts to address by protecting employees against unfair treatment.
However, that is not to say that it is impossible, or even difficult, to dismiss employees. So long as you act fairly and reasonably when doing so.
Yet what does it mean to act fairly and reasonably?
TWO ELEMENTS OF FAIRNESS
Boiled down, a fair and reasonable decision to dismiss will have these two elements:
- a good reason to dismiss. In New Zealand, employees cannot be fired at will (though dismissal during the 90-day trial period comes close to this). Instead, you can only dismiss an employee if you have a good reason for doing so, after considering the wider context and whether there may be any alternatives to dismissal. Good reasons for dismissal recognised by the law include where the employee has misbehaved, or where their position is redundant, or where they are unable to perform their role to your expectations.
a fair process leading to dismissal. A fair process supports your conclusion that there is a good reason to dismiss. Crucially, this means giving your employee an opportunity to feed into your thinking about whether dismissal is fair before you make your decision. Imagine being sentenced by a judge for a crime you didn’t commit without first being given the opportunity to present your case. Employers can be like an unjust judge when they don’t follow a fair process and listen to what the employee has to say before making their decision.
THREE STEPS TO A FAIR PROCESS
Whether you have a good reason to dismiss will depend on the facts. It is not easy to give a general rule.
However, it is possible to speak generally about what a fair process will look like. In broad terms, a fair process requires three steps.
Step one: raise the issue with the employee
The first step is to tell the employee what it is you are concerned about or what you are proposing and that you want to get their response. Crucially, you cannot have made a decision about whether the employee should be dismissed at this stage.
Articulate your concerns or proposals well and give the employee a letter recording this. Hand the employee copies of any documents that you are relying on to justify your concerns. Moreover, give the employee a fair amount of time to consider your concerns before they meet with you to give their response.
Step two: listen to the employee
The second step is to meet with the employee to hear their response to your concerns or proposals. Don’t just listen passively; suspend your judgment and really listen to what they are saying. In some cases the employee may persuade you to take a different course.
So listen, take notes, and ask questions. You should be able to repeat their responses back to them.
Step three: make your decision
The third step is to carefully consider what the employee has said and make your decision. Then, having done so, you need to inform the employee.
It is important at this point to be able to articulate the employee’s feedback and to demonstrate that you have fair responses to what they have said, particularly if you do not agree with them. Again, give the employee a letter recording this.
GUIDES FOR EMPLOYERS
Of course, the way you apply these three steps will vary in different contexts. For that reason, I have written several guides that outline what a fair process will look like whether you are considering dismissal for misbehaviour, redundancy, or because the employee is performing their role poorly.
Feel free to use these processes to ensure you act fairly and reasonably. And if you get stuck, get some advice.
So there it is. Fairness in a nutshell. Tell the employee what your concerns or proposals are, give them a chance to tell you what they think, and really consider what they say before making a final decision.