How to successfully dismiss for serious misconduct

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It can be challenging to navigate the procedural requirements when dismissing an employee for serious misconduct.  So what steps need to occur?  The best place to start is with the Employment Relations Act, which sets out the four key process areas that the Employment Relations Authority and Employment Court must consider when deciding whether a dismissal was justifiable (section 103A(3) of the Act).

Step one – sufficiently investigate the allegation

This test is considered in light of the resources available to the employer.  This does not mean that a small employer is off the hook and can avoid any investigation steps, but it does allow a little more leeway.  For a mid-sized to larger employer, a relatively thorough investigation process will be needed.  This will include interviewing witnesses to the misconduct, taking statements (preferably signed), gathering any documentary evidence, reviewing any video or camera footage and checking for any relevant documents and policies. 
When assessing the evidence collected, an employer is able to draw inferences from surrounding information – provided those inferences are not too far-fetched.  The employer is also entitled to choose between conflicting accounts of what occurred, i.e. by rejecting one account of events or preferring the other.
Where the allegations are serious, a high level of proof will be required – although the base standard is still the ‘balance of probabilities’.  This is particularly the case where the employee may lose a professional licence as a result (such as nurses and teachers) or lose their work permit, and therefore be unable to work elsewhere.

Step two – raise the concerns with the employee before taking action

It is important that the employer clearly advises the employee of the actual concerns or allegations.  It will not be enough to simply give the employee the information and statements gathered (although that does also need to occur) and seek a response.  The employer needs to specify, preferably in a cover letter, what exactly is being alleged.   
For example, the employer might say:  It has been alleged that on 26 June 2014, you caused damage to occur to company property by not taking care to ensure that a brake was applied to a laden trolley you had been using.  That trolley then moved down an aisle in the warehouse, damaging several boxes and their contents.
The employer should outline all concerns that are presently in mind and that are being investigated.  It is not helpful when other issues of concern to the employer suddenly pop up in later proceedings, as the employee will not have had a chance to respond to those issues during the process.
The allegations should also be crafted in a way that does not over-emphasise their seriousness, as that could make it harder for the employer to uphold them on the available evidence.   In the more serious cases, it is important to let the employee know they could face dismissal as a result of the process and advise them to seek advice or representation.

Step three – give the employee a reasonable opportunity to respond to the employer’s concerns, before taking action or dismissing the employee

Once the issues have been raised with the employee and they have been provided with all relevant material gathered by the employer, the employee needs to be given a fair opportunity to answer or explain the allegations.  This includes being allowed adequate time to prepare.  Where there is camera or video footage, the employee should be able to view this ahead of time.
If an employee fails to provide a response to the allegations or does not attend a scheduled meeting, reasonable efforts must be made to contact them.  Ultimately however, the employer is entitled to proceed without the employee’s input if they do not respond.

Step four – consider the employee’s explanation in relation to the allegations

It is important that the employer genuinely considers the employee’s explanation with an open mind.  An employer that is not willing to consider, or at least explore, the employee’s responses, might find that those responses are proven to be correct in any litigation process that follows.  In order to demonstrate that any explanation is being fairly considered, the employer should listen carefully in any disciplinary/explanation meetings with the employee and not appear to have made up their mind already.  Arguing with the employee about their explanation is best avoided.
Where there is a perfectly innocent explanation, the employer may struggle to show that a dismissal is fair and reasonable.   Similarly, where the matter is finely balanced, an employer may be expected to give the employee the benefit of the doubt – particularly where they are a long-serving employee with an otherwise unblemished record.  On the other hand, an employee who lies about an incident can be more harshly treated.

Finally – making a fair decision

In addition to these four procedural steps, the Employment Relations Act requires that the employer’s decision be what a fair and reasonable employer could do in all the circumstances at the time.   
Where there are health and safety issues arising from the employee’s actions, these can validly be taken into account.  However, the employer still needs to determine whether the actual action was ‘serious’ and should not automatically categorise it as serious merely because there is a health and safety element.

By Karen Radich, specialist employment law barrister at Clifton Chambers 

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