Disciplinary Procedures & Dismissal Management – A Quick for N.Z Employers
Managing employee discipline and dismissal is one of the highest-risk areas of employment law for New Zealand employers to navigate.
Even where there is a genuine reason to discipline, issue a formal warning, or dismiss an employee, failures in process, fairness, or proportionality regularly result in successful personal grievance claims for unjustified dismissal or disadvantage, including financial orders being made against employers.
The Legal Framework Employers Must Follow
Good Faith and Legal Justification
All disciplinary and dismissal decisions must comply with:
The key question is whether the employer’s actions were what a fair and reasonable employer could have done in all the circumstances, both in terms of:
Substantive Justification: Was there a valid reason?
Procedural Justification: Was a fair process followed?
An employer can lose a case even where misconduct occurred if the process is flawed.
Employer Pro has a comprehensive Employer Toolkit available for managing ‘Investigations, Suspensions and Disciplinaries’, including step-by-step guidelines, practical walk-throughs, legal commentary, various practical employer-focused template letters to implement the correct process, including formal warning and termination letter templates and more.
Misconduct vs Serious Misconduct
Misconduct involves lower‑level or repeated breaches of expected standards of behaviour. It generally justifies formal warnings, not immediate dismissal.
Misconduct is typically managed through progressive disciplinary processes (subject to an employer’s specific internal procedures and contractual obligations) and warnings, for example:
First written warning.
Final written warning.
Dismissal on notice (if misconduct continues).
Serious misconduct involves behaviour that fundamentally undermines trust and confidence and may justify summary dismissal, but only after a full and fair process. Employers must apply a high threshold before categorising conduct as ‘serious misconduct’ since decisions made in terms of terminating an employee’s employment can be subject to vigorous legal scrutiny. Mislabelling general conduct as ‘serious misconduct’ is a frequent and costly error that employers often make.
The Process Required – High-level Core Employer Obligations
A lawful disciplinary process generally requires the following steps as minimum:
Identify and Clearly Put Allegations to the Employee
Employers must clearly outline:
What the concerns are.
When and where the alleged conduct occurred.
Why it may breach workplace standards.
Vague or shifting allegations undermine procedural fairness and can expose an employer to risk. Any allegations against an employee must be recorded formally by way of formal correspondence, i.e. a letter setting out everything of relevance. Careful drafting, preparation and due diligence is key.
Provide All Relevant Information
Before any disciplinary meeting, employers must disclose all relevant information they intend to rely on, including:
Witness statements.
CCTV footage.
Documents, evidence or reports.
Failure to provide access to all relevant information is a common basis for successful personal grievance claims. The law requires access to all relevant information be provided to the employee concerned before any decisions are made and must be managed appropriately as part of any formal disciplinary process.
Advise of Process and Notify of Potential Outcomes
Employees must be told:
That a disciplinary process is underway and degree of misconduct, or serious misconduct involved.
Their right to representation or support, including that they can obtain independent advice, along with a sufficient opportunity to seek that advice.
The possible outcomes, including dismissal where applicable.
Surprising an employee with termination or issuing a warning without a process is unlawful and will expose the employer to legal risk.
Give the Employee a Genuine Opportunity to Respond
Employers must:
Hold a formal and fair meeting.
Allow the employee to respond fully.
Ask clarifying questions.
Genuinely Consider the Employee’s Response
Decision‑makers must approach the outcome with an open mind and take sufficient time to genuinely consider the employee’s explanation before deciding the outcome.
Ensure Proportionate Outcomes
The outcome must be reasonable and proportionate, considering:
The seriousness of the conduct.
The employee’s length of service.
Any prior formal warnings.
Consistency with past practice.
A Brief Note on Employment Investigations
Not every disciplinary matter requires a separate formal investigation. However, where facts are disputed, allegations are serious, or evidence is complex, employers must ensure they have sufficiently investigated before acting, including implementing a formal disciplinary process as required by section 103A of the Act. A failure to investigate appropriately and/or implement a sufficient investigation process can invalidate an otherwise valid dismissal and expose an employer to legal risk.
Common Employer Mistakes
Employers regularly get disciplinary processes wrong by:
Failing to follow their own policies or employment agreements.
Predetermining outcomes before hearing the employee.
Withholding, or failing to disclose relevant information.
Confusing misconduct with performance issues.
Overreacting or applying disproportionate outcomes.
Treating warnings as informal or automatic.
Case Law Snapshot – What Recent Cases Tell Employers
Mulqueen v The Merino Story (NZ) Limited [2023] NZERA 329
An employer dismissed a retail employee for alleged serious misconduct following a customer complaint involving an alleged comment about the employee’s anti-vaccination views with a customer.
The Authority found the dismissal unjustified due to an insufficient investigation, failure to follow the employer’s own disciplinary procedure, and a lack of genuine consideration of the employee’s explanation. In the Authority’s view, the conduct, even if proven, did not meet the threshold for serious misconduct and therefore the employee’s dismissal was found to be unjustified.
The Authority awarded the employee over $18,800 in financial remedies (excluding the employer’s own legal costs).
Employer Takeaway: Allegations alone are not enough. Employers must properly investigate complaints, follow their own internal procedures, and ensure the alleged conduct genuinely meets the threshold for serious misconduct before dismissing an employee on this basis.
De Groot v RSPCA [2025] NZERA 31
The Authority found that an an animal-care worker’s summary dismissal for alleged serious misconduct was both procedurally and substantively unjustified. The employer had raised multiple concerns about the employee’s record-keeping and alleged failure to administer prescribed medication, but:
The employer did not provide a full list of specific concerns before the disciplinary meeting, undermining the employee’s ability to respond.
Allegations were expanded while the employee was on leave, and she was not given adequate opportunity to respond with support present.
The employer treated relatively minor recording issues as serious misconduct and failed to explore alternatives to dismissal.
The Authority concluded the employer’s process was fundamentally flawed and not what a fair and reasonable employer could have done in all the circumstances.
As a result, the employee was awarded over $29,000 in financial remedies (excluding the employer’s own legal costs). Notably, there was no reduction in remedies for alleged contributions by the employee because the Authority found the employer’s process itself was deeply unfair.
Employer Takeaway: A disciplinary process must provide clear, complete information before any formal meetings, or discussions about the alleged misconduct, and genuinely allow the employee to respond. Escalating minor issues into serious misconduct without fair and transparent process can result in significant financial orders being imposed against employers.
Compliance Warning
Employer should ensure they are familiar with the process required by New Zealand law when managing disciplinary and dismissal issues, including issuing formal warnings. A fair, thorough and documented process is required when addressing conduct-based issues in the workplace.
This article is provided for general information only and does not replace professional advice. Employers should seek advice specific to their circumstances from Employer Pro if unsure about managing discipline and dismissal procedures in the workplace. Employer Pro has a range of employer focused resources and services available through our competitive Employer Protection Packages.
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