Addressing employee misconduct and performance issues during the Government’s Alert Level 4 lockdown, doesn’t mean that employers are required to (or necessarily should) put these processes on hold. This is even true at Alert Levels 2 and 3.
For employers navigating a disciplinary or performance management process, the test of justification (set out at s103A of the Employment Relations Act 2000), remains the same, in that the court (or Authority) will consider “whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the action occurred”.
In assessing whether this test has been met, the Authority will consider whether the employer sufficiently investigated allegations against an employee before taking action, whether they raised the concerns with the employee, gave the employee a reasonable opportunity to respond, and whether the employer genuinely considered the employee’s explanation before dismissing or taking action against the employee.
While traditional face-to-face meetings will not be appropriate (or possible, for many) at this time, employers will need to utilise technology to ensure that they are meeting the requirements of the s103A test and running a fair process. In order to ensure that allegations are investigated thoroughly, employers may need to use email, teleconferences and other systems such as Zoom and Microsoft Teams. Privacy laws do not prevent the use of such systems, but an employer should ensure appropriate security measures in are place.
As is standard during these processes, disciplinary allegations and/or performance concerns should be sent out in writing to the employee, ensuring that these are set out in enough detail to allow the employee to respond, along with any supporting evidence. Employers utilising email to send this detail through would be wise to confirm receipt with the employee, ensuring that the employee has sufficient notice of the meeting and they have received all the relevant documentation.
Employees should then be given an opportunity to respond, with the relevant decision-maker present using technology that can be accessed by not only the employer and employee themselves, but also the employee’s chosen support/person or representative. This may involve some consultation when it comes time to setting up the meeting. Employers would also be wise to have a contingency plan in place in terms of how the employee will provide feedback in the event of inevitable technological difficulties. For example, by providing a date by which the employee should provide their feedback in writing to be considered.
Importantly, good faith obligations continue to apply, requiring both employers and employees to be “responsive and communicative.” This may necessitate a little more effort being expended on both sides, along with some creative thinking.
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.