Q&A: Giving a preliminary disciplinary decision - Employment Law Update January

We have been accused of breaching procedural fairness obligations because we did not provide a preliminary dismissal decision and allow an employee to comment on that proposed outcome before giving a final decision of dismissal. We thought we had done the process correctly and fairly. We had told the employee from the outset that dismissal was a potential outcome of the investigation since we were investigating alleged serious misconduct. We just did not have an extra step of advising the employee of a preliminary decision to dismiss and seek his comment on that proposed outcome. Are we required to have this additional procedural step?


First of all, you need to check whether this procedural step is part of your employment agreement or policies. If so, you need to have followed it. Secondly, if you had earlier advised the employee you would take this step of giving the opportunity to comment on the proposed disciplinary outcome, then this would be another reason you would need to have adhered to that commitment. Otherwise, the extra step to provide an employee with an opportunity to comment on the proposed disciplinary outcome is an ideal process, but the Courts have tended to treat it as more of a soft procedural fairness step, rather than a black and white one which is always required. This leniency only exists, of course, if you had already made the employee aware that dismissal was a potential outcome earlier on in the process before receiving the employee’s explanation to the allegations. You have indicated that you have done this.

Procedural fairness requires you to provide the employee with full disclosure of the allegations, all supporting relevant information/evidence, a fair opportunity to respond to the allegations, with the opportunity to do so with representation if the employee wishes, place the employee on clear notice of the potential sanction (ie if dismissal is possible the employee should be notified of this before obtaining a response from the employee) and the employer must fully and fairly investigate the allegations and the employee’s explanation before coming to a decision. It sounds like you made the employee aware of dismissal being a potential outcome at the beginning of the process. Therefore, if your substantive reason for dismissal is sound, your investigation is fair and your conclusion is robust, the fact you did not give an opportunity for the employee to comment on the proposed disciplinary sanction is not likely to be something you need to worry a great deal about.


Conclusion

As you can see from the decisions of the Court above, the Court has been lenient in assessing disciplinary processes where the employer missed the procedural step of providing a separate opportunity to the employee to comment on the proposed outcome of dismissal. The more recent decision of the Chief Judge appears to suggest that there may not even be any requirement to do so where the employee had been placed on notice of dismissal as a potential outcome earlier in the process, prior to an employee providing a response to the allegations.

Going forward, in the future, you should generally include this procedural step in your disciplinary process and it may bolster the overall fairness of your process. But you are now currently dealing with a matter of hindsight where you have already dismissed the employee. However, as indicated in the case law above the failure to have this extra step has not been treated as something which renders a dismissal unjustified.


Reproduced with the permission of Wolters Kluwer NZ


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