Team members can legally challenge their dismissal or disciplinary action taken against them by taking a personal grievance. The Employment Relations Act gives all team members the right to pursue a personal grievance if they have any of the following complaints:
- unjustifiable dismissal
- unjustifiable action which disadvantages the team member
- discrimination
If they do so we need to be able to demonstrate both that we had good cause for the action taken and that our process was fair. That means:
Good cause
- An instance of serious misconduct e.g. assault or unauthorized possession of council property. Serious misconduct can justify dismissal without the need for warnings.
- Team member lacks the capacity for the job e.g. team member lacks the essential skills or expertise after a Performance Improvement Plan has been put in place which included training and support.
- Repeated misconduct (after warnings).e.g. repeated failure to wear safety gear provided, frequently absent from work.
- Persistent poor performance (after warnings). e.g. missing objectives, deadlines, health and safety standards, not applying the core values to standards of behaviour etc.
- Redundancy (after consultation)
- Frustration of contract (after consultation). e.g. long-term medical incapacity.
- Misrepresentation/falsification (after investigation etc). e.g. falsely claiming essential qualifications or experience.
The overall test is “could a fair and reasonable employer have reached the same decision (as yours)?”
Procedurally fair
In dealing with disciplinary cases, it is not only important for you to ensure that justice is done but also that it is seen to be done. Consider the following points:
We need to establish that the team member knew and understood our work rules, policies or standards they are alleged to have breached. This includes the disciplinary procedure.
We must inform the team member of the allegation which is to be investigated and advise them of the consequences if the allegation is sustained. We must ensure the team member has been provided with all information and evidence gathered during the investigation that may be relied on by you/decision maker in determining the allegation.
We must promptly make all reasonable efforts to establish and confirm the facts. If the team member raises a defence based around information we are not sure of, we need to be seen to have checked that information before reaching a conclusion to our investigation.
We must offer the team member the opportunity to be represented and have Organisational Development and Capability present during our disciplinary process.
Give the team member a real chance to explain or justify his/her actions before a conclusion is reached about the allegations. This includes providing evidence we intend to rely on (e.g. witness statements) to the team member ahead of the disciplinary interview (at least 24 hours or longer where it is reasonably necessary) so that they can secure representation and their representative have time fully to consider our evidence before responding to it. If we uncover new or additional evidence during the investigation the team member must be provided with this information and given an opportunity to respond to it before any final decisions are made.
After hearing the team member’s explanation we must give full consideration of the information he/she has presented and of the explanation we have been provided. This may mean checking any additional facts or new evidence the team member raises when making their explanation. It also means that when deciding on an action, we need to take into account any mitigating circumstances the team member may raise (e.g. their work history and the consistency with which rules have been applied in the past etc).
We must spell out what action we are taking and why. This will involve, for example, clearly identifying to the team member the “gap” between his/her performance or behaviour as compared with expected requirements.
Burden and standard of proof
- The burden of proof rests on the employer. In other words we will need to show that it had good cause to take the action being challenged and that the procedure followed was fair.
- The standard of proof required is proof ‘on the balance of probabilities’ – NOT “beyond reasonable doubt”. This is a lesser standard than for a criminal hearing and allows us to decide which version of events was ‘most probable’ where evidence is conflicting.
- Rotorua Lakes Council will be judged on the reasonableness of its actions overall notwithstanding any small procedural weakness.
- The decision will be evaluated based on “what was in the team member’s mind” at the time of dismissal, based on complete investigation and reasonable interpretation of available facts.
- Evidence we discover after making our decision is not relevant: we will be judged on what we knew when we made the decision to dismiss / warn. Information we discover afterwards (for example the team member’s subsequent conviction for theft) cannot be used to defend our decision to dismiss him. We will be judged on what we knew at the time we dismissed.
Restrictions
- Participation in union activities.
- Taking legal proceedings against an employer.
- Colour, race, ethnic or national origin.
- Political opinion, family status, employment status, sexual orientation.
- Sex, marital status, religious/ethical belief or age.
- Disability (physical or intellectual).
- Pregnancy or intention to adopt a child.