To dismiss someone, employers must have a significant reason for the dismissal and also dismiss the worker using a fair and proper process. Even if you have a good reason for dismissing someone, if you do not follow the correct procedures, you may be found to have unjustifiably dismissed that employee. The employee may be able to bring a successful personal grievance claim against you under the Employment Relations Act (2000).
If you dismiss someone you must follow correct process and procedures. One useful resource is http://www.employersguide.co.nz/
However, remember that an employee can bring a grievance claim against you, so ensure you:
- Notate all issues and resulting action and
- Seek legal employment advice
Reasons for dismissal
There are five common reasons why an employer may wish to dismiss an employee:
- Misconduct (includes serious and less serious misconduct)
This is one of the elements that is required when dismissing an employee as referred to previously. What constitutes a fair procedure depends on the circumstances of each case. If no procedure is spelt out in the employment contract, then for general misconduct, a fair procedure includes:
- Verbal warning
- Written warning
- Second and final written warning
- Termination (with a notice period)
Errors to avoid
The following list is by no means exhaustive but contains some of the most common everyday errors employers make:
- Employers tend to allow emotions dictate their actions rather than addressing the issues.
- There is a tendency to allow events to build up rather than dealing with them as they occur. They let employees ‘get away’ with minor infringements….then ‘blow up’.
- They dismiss without giving warnings.
- They dismiss without giving the employee the opportunity to give their side of the story.
- Warning letters are frequently not adequate.
- Employers fail to record the events.
- Employers fail to record the sequence of events.
- Some feel that if they bring pressure to bear on an employee the employee will go away.
- They dismiss without giving a notice period.
- They dismiss without referring to the employment contract.
- Employers make positions redundant rather than dismiss for the real reason.
- They employ other staff to fill a position they have made redundant.
- Employers often confuse a ‘good reason’ for dismissal with following correct procedures.
In other words, an employee can do something serious which justifies dismissal (say theft) but if the correct procedures are not followed by the employer, the whole dismissal may be found to be unjustified.