Dealing with misconduct can feel like walking through a minefield. Whether it’s lateness, rudeness, safety breaches, or a serious incident, many employers panic and want to act quickly. That urgency is understandable, especially in small and medium sized businesses where one person’s behaviour affects the whole team.
But here’s the trap: moving too fast without a proper process is the fastest way to end up in the ERA (Employment Relations Authority). It’s not the misconduct itself that gets most employers in trouble, it’s the way they respond.
The good news? A fair process doesn’t need to be complicated or dragged out. You can address serious issues confidently if you follow clear steps.
Pause Before You Act
Avoid jumping to conclusions. Even if you “know” something happened, you must treat it as an allegation until you’ve investigated. Never issue warnings or terminate based on assumptions, hearsay, or only one side of the story.
If you think “I already know what happened”, that’s a sign you need to slow down.
Do a Preliminary Check
Before launching into a formal investigation, gather enough basic information to decide if:
· the matter needs a formal process
· the employee should remain at work
· suspension is appropriate (must be paid)
This is not the full investigation, it’s simply a quick sense check.
If Needed, Suspend — But the Right Way
You can’t just suspend someone on the spot. The employee must be:
· told it’s a proposal, not a decision
· allowed to respond with a support person
· paid while suspended
Suspension protects the integrity of the investigation. it’s not a punishment. The ERA penalises employers who treat it as one.
Invite the Employee to a Formal Meeting
This letter (or email) must include:
· The specific allegations
· Possible outcomes (warning through to termination, depending on severity)
· The right to bring a support person
· Copies of relevant evidence (statements, CCTV, screenshots, complaints etc.)
If you don’t provide evidence upfront, you risk the entire process being unfair, even if the behaviour ends up being proven.
Investigate Fairly
During the meeting, your job is to listen. Ask questions. Take notes. Don’t decide anything yet. Make sure you consider:
· the employee’s explanation
· intent vs mistake
· past behaviour and warnings
· training, support, instructions, policies, and cultural factors
· whether there was confusion or miscommunication
You’re gathering facts, not seeking to “catch them out”.
Decide After the Meeting — Not In It
Once the meeting is over:
· review everything
· assess all sides fairly
· document your reasoning
· communicate the decision in writing
The outcome must make sense in proportion to what happened (e.g., serious misconduct may justify termination, but minor misconduct may call for coaching or a warning).
The Biggest Mistake Employers Make
Most businesses don’t get in trouble for acting, they get in trouble for predetermining the outcome. If you go into the process already having decided what will happen, you risk a personal grievance before you even start.
Process protects everyone, including you.
When Should You Get HR Support?
If the issue involves:
· serious misconduct
· bullying, harassment, discrimination, or safety
· dismissal is a possible outcome
· repeated behaviour after prior concerns
· medical or mental health complexities
Getting advice upfront is far more cost-effective than fixing a mistake later.
Need guidance with a misconduct issue?
proHR supports NZ small and medium businesses to handle investigations safely, fairly, and confidently. Get in touch with us if you need help.
