An employer taking disciplinary action against an employee must ensure:
Relations between employers and employees are governed by the EMPLOYMENT RELATIONS ACT 2000, which came into force on 1 October 2000. The Act requires employers and employees to act in good faith in dealing with each other; this duty will clearly apply to an employer taking disciplinary action against an employee.
The Employment Relations Service in the Department of Labour can provide information and mediation services to help deal with employment problems. Contact them on 0800 800 863.
There are a number of steps that an employer must take to ensure that any disciplinary action is justified and is carried out in a way that is procedurally fair:
If you decide to give the employee a warning, you should outline what the employee must do to improve his or her performance and give the employee a chance to do so. If appropriate, you should give the employee assistance in this.
Except where summary dismissal is justified, the accepted procedure is usually to first give an oral warning, then a formal written warning, then a final written warning, and then, if necessary, dismissal.
If the employee is a new employee on a period of probation or trial, the requirements of procedural fairness apply just as if he or she were a permanent employee.
If the employer intends to dismiss the employee there are special considerations to take into account: see How to dismiss an employee.
An employee can lodge a personal grievance claim against an employer who has issued a warning, changed an employment condition or dismissed the employee, if the action taken was unjustifiable or was carried out in a way that was procedurally unfair. The test of whether the action was justifiable or the process was fair is an objective one - namely, whether it meets the standard of what a fair and reasonable employer would have done.
If successful, the employee can be awarded damages for lost wages as well as for distress. See How to defend a personal grievance claim brought by an employee.
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