Once an employer has investigated allegations of misconduct, and reached the conclusion that yes, the employee has indeed done what they were accused of, it is tempting to race to the finish line, and just issue the warning or dismissal.  However, employers need to take a breath, and make sure that the employee gets an opportunity to comment on the proposed sanction before it is decided.  

We like to think of it as akin to the criminal process – a person is accused of a crime, appears in court, and the judge or jury decide whether he or she has indeed committed that crime.  Once that decision is made, there is a separate sentencing hearing, where aggravating and mitigating factors are weighed, and a punishment or sanction is determined.  The same should apply in an employment process.   

We know that in a redundancy situation, the employer must first propose, and consult with employee/s about the decision to restructure the business.  Once that decision is made, the employer must consult about the implementation – whether the restructure will result in the termination of an employee’s employment , selection criteria if applicable, whether there are any alternatives to termination, and if not, matters such as notice, handover, CV assistance, etc.  The second part is just as important as the first.  

The same applies in a disciplinary situation (and indeed in any situation where the employer is considering a decision that may impact on an employee’s employment – for example, a formal performance management process).  The employee must be given an opportunity not only to comment on whether they have committed the misconduct, but on the consequences of that.  The process should (in almost all circumstances) run like this:

  • Allegations of misconduct/serious misconduct put to employee.  All information provided, and employee advised of possible consequences of the process.
  • Employee responds to allegations.
  • Employer considers employee’s responses, investigates further if necessary, reaches conclusion as to whether employee has committed misconduct/serious misconduct.
  • Employee advised that a decision has been made on the allegations of misconduct/serious misconduct, and the employer is considering what sanction to impose.  Employee invited to provide their views on sanction.
  • Employee gives feedback on the proposed sanction – mitigating factors and anything they would like employer to take into account in deciding on the appropriate sanction.
  • Employer considers the feedback and all the circumstances, and decides on the appropriate sanction.

In this way, the employee gets the opportunity to, for example, admit that they have committed the misconduct (at the first stage) but provide mitigating factors at the second stage that could impact on the sanction the employer will impose.  The ‘sentencing’ phase is the employee’s opportunity to raise matters such as previous good service, any reasons why the employee may have committed the misconduct, parity with other employees, stressors, etc, that have nothing to do with the initial allegations.  A fair and reasonable employer will take all of these matters into account in deciding on what action is appropriate in all the circumstances. To put this in its context, deciding if an employee has committed misconduct is critical, but nothing is more important to the continuation of an employee’s employment than the actual decision whether or not to dismiss.  

A word of warning from the Chief Judge of the Employment Court, who has made comment in a recent case involving Bay of Islands College: employers must take care not to predetermine the outcome at the second stage.  In this case, the employer, in reaching its decisions on the conduct, made comments such as “I, and the Board have concluded that it is no longer possible for you to manage the staff and lead the school” and “[t]here is now an irreconcilable breakdown in trust and confidence”.    The employee was then invited to provide feedback on the employer’s proposed sanction of dismissal.  Despite the ostensible opportunity to comment on the proposed sanction, the Court’s view was that employer’s comments clearly indicate the decision on the outcome was all but made.  Comments such as this at the ‘decision on conduct’ stage mean a very real risk that the outcome is predetermined, and the employer’s action is found to be unjustified.