Employment+Law-Dismissal+for+misconduct

= Dismissal for misconduct =

Wiki by Sara Hernandez. ID 1368207

**Question: How to dismiss an employee for misconduct? **

 The law come from the Employment Relations Act 2000. However, most guidelines are not compiled in a legal document under this Act but are still useful at the moment of initiate a process. These guidelines are provided by the Department of Labour.

First, misconduct is defined as an act or behaviour (usually intended) that does not comply with rules or standards. Minor cases of misconduct at work are lateness, using office equipment for personal use, minor damage to property, etc. Serious cases are corruption, sexual harassment, discrimination, assault, etc

In order to dismiss an employee there must be a valid reason for the dismissal, in this case reasonable evidences of misconduct. A fair process must be completed to avoid future claims of lost wages and damages for distress by the employee. However, there is not step-by-step process in the legislation that businesses can follow because the requirements depend on the circumstances, which vary form case to case. The legislation state that the process must be fair, partial and honest; every employee must be treated equal in the same situation. The following process is recommended:


 * A verbal warning to the employee in order to correct behaviour
 * If behaviour does not improve, give the employee a written warning
 * Start the dismissal process by investigating all the facts and informing the employee about the rising situation, explaining in detail all the facts and relevant documents. Do not hide anything to the employee.
 * Give the employee the opportunity to defend her/himself and/or have a support person present at the moment of being heard. Give him/her enough time to be prepared and listen with an open mind. It is recommended to record all the information
 * Take time to analyse all the facts and declarations from the employee and other staff. If further investigation is necessary, inform the employee about the new discoveries and give her/him time to prepare and defend again
 * After this process, the employer decides whether the offense was serious enough to dismiss. If not, a written warning should be given to the employee in order to avoid future problems. On the other hand, if decide to dismiss the employee then by law employers must
 * Give a final written warning
 * Pay the wages for the notice period and not require the employee to work this time. Explain this carefully to the person

Sometimes, employees do not commit a serious offense, but a large number of small offenses that may justify dismissal. For example, a employee that go to work 1 or 2 hours late during a long period of time could be fired for misconduct and poor performance. A similar process must be followed. <span style="font-family: 'Cambria','serif'; margin: 0cm 0cm 0pt;">In other cases, the misconduct is so serious (For instance, assault, the use of illegal drugs in the work environment, violence against co-workers) that a summary or instant dismissal is justified. By this the employer is not require to give any warnings or notification, however a fair process must be followed too and employee is still entitle to wages and other benefits under the contract.

<span style="font-family: 'Cambria','serif'; margin: 0cm 0cm 0pt;">It is also recommended, that businesses have set out the rules and procedures for misconduct in their contracts in order to aware employees regarding what they can and cannot do. The dismissal process is very sensitive and subject to different points of view, so it is important to be partial and look for advise of third parties if necessary.

<span style="font-family: 'Cambria','serif'; margin: 0cm 0cm 0pt;">More information about this topic can be found at

<span style="font-family: 'Cambria','serif'; margin: 0cm 0cm 0pt;">Departmnet of Labour Website <span style="font-family: 'Cambria','serif'; margin: 0cm 0cm 0pt;">[]

<span style="font-family: 'Cambria','serif'; margin: 0cm 0cm 0pt;">Guidelines for employers <span style="font-family: 'Cambria','serif'; margin: 0cm 0cm 0pt;">[]