- Raise any concerns about performance with your employee as soon as you can. Poor performance rarely needs to turn into a disciplinary process. Learn more here
- Misconduct or serious misconduct always needs to be investigated thoroughly before a decision is reached. Learn more here
- Ensure you conduct a legally full and fair investigation into any misconduct. Learn more here
- Act in a fair and reasonable manner during disciplinary situations. You must have a good reason for taking disciplinary action and you must follow a fair process in investigating and implementing any decisions.
- The most common type of disciplinary action is a warning. In most cases several warnings about the same situation must be given before dismissal would be seen as fair and reasonable.
- Be sure to follow thorough processes and document discussions, investigations and warnings. Continue to act in good faith in all dealings with your employee.
- Seek legal advice before acting to dismiss an employee.
- Ignoring an issue won't make it go away and everyone needs to know where they stand.
Quick Questions & Answers
What constitutes serious misconduct?
Serious misconduct involves offences that are very serious in nature and may even involve breaking the law. It covers situations where an employee’s behaviour is such that you feel threatened, unsafe or the act results in a deeply impaired trust of the person. Common examples include theft, assault, bullying, harassment, serious breaches of health and safety, using drugs or alcohol at work and wilfully damaging property and equipment.
It is a good idea to develop a code of conduct for your farm, providing examples of misconduct and serious misconduct. Make it clear that this list is not definitive but rather a general guide. A code of conduct is a useful tool when dealing with misconduct problems as it provides clarity to everyone about what’s considered unacceptable behaviour on the farm.
Get some tips and ideas on developing a code of conduct for your farm.
Bear in mind that any such list needs to be fair and reasonable. Some employment agreements or codes of conduct contain a long list of serious misconduct behaviours. In a disciplinary situation, you must have regard to the actual nature of the offence, the surrounding circumstances and the employee’s explanation. An offence is not necessarily serious misconduct just because it’s on a list. An offence can only be deemed to be serious misconduct if it genuinely and deeply undermines your trust and confidence in the employee.
How do I conduct a disciplinary process?
What do I need to do first?
- Check the employee’s employment agreement and your employee handbook. You are required to follow the problem solving procedures outlined in these documents.
- Throughout the employment relationship, it’s a good idea to set up regular informal meetings with all employees to touch base and check that everything’s on track. These meetings are an ideal opportunity to troubleshoot problems early. If you have any concerns about performance or behaviour, raise the issue with the employee, giving specific details and highlighting what you would like to see done differently.
- If the problem reoccurs, you will need to move to a more formal process. Once the matter is serious enough to warrant disciplinary action, it’s worthwhile seeking advice from a Farm People Management Consultant or lawyer. Throughout any disciplinary situation, you are required to act in good faith, making sure that your actions are fair and reasonable. Your advisor or lawyer can explain this process and advise you on the best way to handle different situations.
- In cases of repeated misconduct, serious misconduct or ongoing poor performance, a disciplinary process may be necessary. A disciplinary process is any process that may result in disciplinary action being taken against the employee e.g. warnings, removal of privileges or, as a last resort, dismissal.
- Your actions need to be justifiable, both substantively (you had a good reason) and procedurally (you followed a fair process). Your employee has the right to lodge a personal grievance if they feel they have been unjustifiably dismissed or unfairly treated.
Find out more about the disciplinary procedure options available to you and how to follow a fair process during disciplinary situations.
- Take thorough notes during meetings so there is a record of conversations. It’s a good idea to include a support person to take notes on your behalf – that way you can concentrate on the matter at hand. Your employee is also entitled to bring a support person.
- Different rules apply during a trial period. An employer and employee may agree to a 90-day trial period as part of the employment agreement. If an employee is dismissed during this period, they cannot take a personal grievance for unjustified dismissal against the employer. They can, however, take a personal grievance on other grounds e.g. discrimination, harassment, or unjustified action by the employer that disadvantages the employee.
See Employment New Zealand: Employment relations: employment agreements: trial period for more information.
- Develop a performance management process to use with all staff, including performance appraisals and regular meetings. This process helps ensure that your employees have a clear understanding of what’s expected. It also assists you to identify any gaps in skills and knowledge, and troubleshoot problems early.
Good performance management can help prevent the need for disciplinary situations as expectations are discussed regularly and many issues are dealt with at an early stage.
- Develop a code of conduct for your farm. This clearly sets out expected behaviour on the farm, which helps to establish a positive workplace culture. It’s also a useful tool for dealing with misconduct, as it provides clarity on what’s considered unacceptable behaviour.
Read more about how you can develop a code of conduct on your farm.
My employee can no longer fulfill the requirements of the job, can I dismiss them?
The ability to dismiss an employee will depend on the circumstances of the case. Of particular importance is what it means to no longer fulfil the requirements of the job. Is the employee unable to work at all? Or can they work but no longer fulfil certain requirements of the job? How essential are these requirements?
The most common reason for this type of situation is illness or injury. If the employee is off work for a prolonged period of time, there comes a point where you can decide to dismiss the employee. Dismissal is a serious action to take and is subject to stringent requirements. You must be able to justify any such decision both substantively (you had a good reason) and procedurally (you followed a fair process). The nature of the illness or injury, its duration and prognosis for the future, are all important considerations. Please seek legal advice before taking any action.
Read more about managing extended time off work due to sickness or injury.
If an employee can work but cannot fulfil certain duties (e.g. no lifting or bending), it is less likely that dismissal will be justifiable. It does depend on the situation of course - how essential these particular duties are to the job as a whole, the alternatives available (e.g. whether work can be redistributed or whether machinery/equipment can be used to assist), how long the employee cannot fulfil these duties and any other relevant factors.
Sometimes an employee is unable to fulfil the requirements of the job for other reasons e.g. an employee who has lost their driver’s licence when driving on open roads is a key requirement of the job. An employer and employee should work through such problems in good faith. An employer should never rush into any decision to dismiss an employee, but should consider the reasonable alternatives available. In this particular example, the employee may be able to apply for a limited licence. Always seek advice from your lawyer or employer’s association before taking action.
Communication is the key to solving many issues in the workplace. Address problems early through open and honest communication.
How do I investigate misconduct?
The first step is to determine what actually happened through reviewing physical evidence, speaking to witnesses and the employee’s supervisor. You may also need to speak with the employee - warn the employee that the incident may constitute misconduct and what they say could be relevant in a disciplinary process later on.
You then need to decide whether to move on to a formal disciplinary process, or whether the situation could be better resolved through other means (e.g. training). Please seek advice from your lawyer or Farm People Management Consultant before embarking on any disciplinary process.
At all times, you are required to act in good faith. This includes communicating openly and honestly and conducting a full and fair investigation. If you do decide on taking disciplinary action (e.g. a warning or in serious cases, dismissal), it needs to be justifiable. This means there was a genuine work-related reason for taking disciplinary action, that you genuinely and reasonably believed that such action was required and that you followed a fair process in reaching and implementing this decision.
Thinking ahead to the future, it’s a good idea to develop a code of conduct for your workplace. This clearly sets out expected behaviour on the farm and provides clarity on what’s considered unacceptable behaviour.
Find out more about developing a code of conduct for your farm.
What is a personal grievance?
An employee can pursue a personal grievance against their employer under the Employment Relations Act. They can be raised on the following grounds:
- unjustifiable dismissal,
- unjustifiable action which disadvantages the employee,
- sexual harassment (by someone in authority or by co-workers),
- racial harassment, or
- duress over membership of a union or other employee organisation.
The personal grievance must be raised within 90 days of the grievance occurring or coming to the employee’s attention. In a limited number of situations, a grievance can be raised outside this time frame.
If the employee and employer cannot resolve the matter themselves, they can use the free mediation service provided by the Department of Labour (Employment New Zealand). This service is available to assist employers and employees to work through problems. If this is unsuccessful, then either party can apply to the Employment Relations Authority for a determination.
In the case of dismissal, this means that an employee can raise a personal grievance if they feel that 1) the employer did not have a genuine work-related reason for deciding to dismiss them and/or 2) the employer did not follow a fair process in arriving at and implementing the decision. A robust disciplinary process and good records are the best defence in this situation.
Different rules apply during a trial period. An employer and employee may agree to a 90 day trial period as part of the employment agreement. If an employee is dismissed during this period, they cannot take a personal grievance for unjustified dismissal against the employer.
Visit Employment New Zealand's website for more details on trial periods.