Posted on: Jun 11, 2015

We’re doing the hard work for you!  Prior to commencing a disciplinary process with an employee, there are many steps the employer needs to take in order to initiate a thorough and fair disciplinary process.  Getting the prep work wrong can be fatal to the process so we’ve put together a checklist for you to help get you started in the right direction.

Pre-process checklist

1. Do you have all the relevant facts and details? – If not you will need to commence an investigation process first.
2. Are all the relevant documents available – including policy statements, employment agreements, witness statements and investigation notes?
3. Have you established whether the matter is potentially misconduct or serious misconduct?
4. Are there prior warnings on the employee’s file that may impact the outcome of the process?
5. Have you decided who will be at the meeting – to present the management case (the decision maker), and to take notes?
6. Has a suitable venue for the meeting been arranged?
7. Has sufficient time been allowed for the meeting, including any breaks or adjournments?
8. Has the employee been adequately notified in writing of the meeting?

To adequately notify the employee you need to ensure that they have:

• been notified of the meeting and given details of time, date and place
• been given copies of the documents that will be presented or used at the meeting
• had sufficient time to prepare a response
• been told that he or she may be represented or accompanied by a support person
• been told what the potential outcome of the meeting may be (i.e. the maximum level of disciplinary action they may be facing)

Don’t forget our team can help you prepare your meeting invitation letter, to ensure you cover off all the required elements.

Conducting the disciplinary meeting

Disciplinary meetings can be as stressful for managers as for the employee concerned. The usual working relationship — friendly, casual, informal — has to be put aside while a formal meeting is conducted. While the stress cannot be eliminated entirely, it can be reduced if a fair, calm and systematic approach is taken.

The outcome of the meeting can have serious consequences for the employee involved and, if mishandled, can also cause the employer considerable legal headaches. Particularly, if a disciplinary meeting leads to a dismissal which is challenged by way of a personal grievance, the conduct of the meeting may well become a key factor in determining whether the dismissal was justifiable. An unfair process may lead to a finding of unjustifiable dismissal, regardless of the rights and wrongs of the situation.

Follow these guidelines to help ensure that the disciplinary meeting itself does not become the subject of a complaint or grievance:

• Ensure you comply with the provisions of the employment agreement and/or the organisation’s policies and procedures.
• Natural justice requires the complaint or allegation to be put to the employee along with all the relevant information the employer has gathered. The employee must be given a reasonable opportunity to respond or offer explanations, and the employer must carefully consider the employee’s responses. Be careful not to form a pre-determined view of the outcome.
• Keep control of the disciplinary meeting. Do not react defensively or angrily to the employee’s criticisms or comments. Avoid being drawn into arguments. Remember this is a formal meeting, not a negotiation.
• A disciplinary meeting should be quite formal and structured. It is OK to take in a list of the points you want to cover off and have noted down the meeting process that you want to follow.
• Disciplinary meetings often take longer than expected.  Allow for them to run over time or be ready to continue at another time. Take breaks during the meeting if either side wants them — or if people are tired, or not concentrating, or if tempers flare.
• Be sure to always take an adjournment to consider the outcome before confirming the final decision.

 

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Posted on: Jun 11, 2015

10 June 2015

The Ministry of Business, Innovation and Employment (MBIE) reminded employers today that part time employees who work regular rostered hours are entitled to pro-rated holidays and leave.

The Ministry’s Labour Inspectorate regularly sees cases where people working part time are not getting their legal entitlements because the employer assumes they can just pay eight per cent on top of their usual pay to cover off their holiday entitlements.

“Employers need to remember that it is only acceptable and lawful to add eight per cent of the employee’s gross earnings as annual holiday pay to their regular pay packets for employees who are on a fixed term contract or who work irregularly or intermittently — for instance on-call workers. In all other cases the four weeks’ pro-rated rule applies,” says Labour Inspectorate Southern Regional Manager Stuart Lumsden.

“We will take action if we encounter these breaches of employment law. For example, the Labour Inspectorate issued an improvement notice to The University of Canterbury Students Association Inc. (UCSA) after receiving a complaint from a former employee who claimed he had not received the correct entitlements for annual leave and sick leave. Our investigation found at least 14 UCSA employees were not receiving their holiday and sick leave entitlements because they were described as ‘casual’.

“In reality, they were part-time employees whose work patterns were established on a roster. They were therefore entitled to four weeks’ holiday pay, pro-rated, under the Holidays Act 2003. Employees who have been working with the employer for six months or more even part-time and casual employees were also entitled to five days’ sick leave, if they meet a certain criteria,” says Mr Lumsden.

UCSA repaid the employees over $15,000 in arrears and rectified its practices.

Employers need to ensure they comply with employment standards as failure to do so not only harms their staff but is ultimately a cost to their business.

Source: Ministry of Business, Innovation and Employment

 

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.