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Procedural Fairness Required When Dismissing An Employee

Published 01 Jun 2010

If the words "procedural fairness" seem meaningless to you, please read the following ...

A dismissal may be held unjustifiable where the circumstances are such that the principles of justice or fairness have not been observed, preventing an employee from having the opportunity to answer the allegations on which the dismissal is based.

The basic requirement is that an employer must follow the principles of natural justice. These minimum requirements mean that the employer must have properly investigated the allegations, given the employee an opportunity to be heard, and considered that explanation before making the decision to dismiss.

In NZ Food Processing Union v Unilever NZ Ltd [1990] 1 NZILR 35, the Court set out the relevant principles. These were:
  • notice to the employee of the specific allegation of misconduct to which the employee must answer and of the likely consequences if the allegation is established;
  • an opportunity, which must be a real as opposed to a nominal one, for the employee to attempt to refute the allegation or to explain or mitigate their conduct; and
  • an unbiased consideration of the employee's explanation in the sense that consideration must be free from pre-determination and uninfluenced by irrelevant considerations. The standard to be observed in carrying out this procedure was summarised as follows.
The Court added:

Failure to observe any one of these requirements will generally render the disciplinary action unjustified. This is not to say that the employer's conduct of the disciplinary process is to be put under a microscope and subjected to pedantic scrutiny, nor that unreasonably stringent procedural requirements are to be imposed. Slight or immaterial deviations from the ideal are not to be visited with consequences for the employer wholly out of proportion to the gravity, viewed in real terms, of the departure from procedural perfection. What is looked at is substantial fairness and substantial reasonableness according to the standards of a fair-minded but not over-indulgent person.

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