It is a question we hear surprisingly often.
“We’ve had enough. Can we just fire them?”
Usually, by the time an employer asks us this question, they are frustrated. There may have been ongoing performance issues, repeated absences, concerns about behaviour, complaints from other employees, or one incident that feels like the final straw.
Sometimes the employer has very good reasons for being concerned.
But having a good reason to be concerned and having a fair basis to dismiss someone are not necessarily the same thing.
Having a reason is only part of the equation
New Zealand employment law requires employers to act fairly and reasonably when considering dismissal.
That generally means there are two important questions.
Was there a sufficiently good reason for the employer's decision?
And was a fair and reasonable process followed before that decision was made?
An employer can have genuine and serious concerns about an employee and still find themselves facing a personal grievance if they jump straight to dismissal without properly investigating the situation and giving the employee an opportunity to respond.
“But it was serious misconduct”
Serious misconduct can potentially justify dismissal without notice, but describing something as “serious misconduct” does not automatically make summary dismissal lawful.
The employer still needs to establish what happened.
That will usually involve investigating the allegation, providing the employee with sufficient information about the concern, giving them a reasonable opportunity to respond, genuinely considering their explanation, and then deciding whether the allegation is substantiated.
Only then should the employer consider the appropriate outcome.
Even where the conduct initially looks clear cut, there may be information the employer does not yet know.
What about poor performance?
Poor performance is different from misconduct.
If an employee is not performing to the required standard, dismissal will not usually be the appropriate first step.
The employee should generally understand what the required standard is, where their performance is falling short, what improvement is required and what support will be provided.
They also need a genuine and reasonable opportunity to improve.
A performance process should be about achieving improvement, not simply creating paperwork to justify a decision that has already been made.
What if they keep calling in sick or not turning up?
Attendance issues can be particularly frustrating for employers, especially when other employees are having to cover the workload.
But the reason for the absence matters.
Genuine sick leave, unauthorised absence, failure to follow an absence notification procedure and a longer term inability to perform the role are different employment issues and may require very different processes.
Before taking disciplinary action, employers need to understand what they are actually dealing with.
“Everyone knows they have to go”
This is where employers can get themselves into difficulty.
Once a decision has effectively been made, it becomes much harder to demonstrate that the employee was given a genuine opportunity to influence the outcome.
Comments in emails, text messages or internal discussions such as “we need to get rid of them” or “let’s start the process to terminate them” can become very problematic if the matter later ends up before the Employment Relations Authority.
The purpose of consultation, an investigation or a disciplinary meeting is not simply to tick a box before implementing a predetermined decision.
The employee's response needs to be genuinely considered.
Employment law has changed, but process still matters
There have been significant changes to employment law in 2026, including changes affecting personal grievance remedies and employees earning $200,000 or more.
However, those changes should not be interpreted as meaning employers can now simply dismiss employees without following an appropriate process.
For most employees, the fundamental principle remains the same: employers need to have a good reason for what they do and follow a fair and reasonable process.
Before you say “you’re fired”
If you have reached the point where you think an employee's employment may need to end, getting advice before taking action can make a significant difference.
Often the most useful time to call us is before the meeting invitation is sent, before allegations are put in writing and certainly before anyone tells the employee that a decision has already been made.
We can help you identify what type of employment issue you are actually dealing with, determine the appropriate process and guide you through it from start to finish.
If you are thinking, “we’ve had enough, can we just fire them?”, give us a call before you do.