Disciplinary action against an employee is not as easy as a slap on the wrist. Employers need to be aware of various issues surrounding workplace discipline and end-of-employment procedures. HRD spoke to Buddle Findlay partner and employment law specialist Sherridan Cook on the legalities of workplace discipline and termination.

Trends evident in recent termination cases

“A key focus for the Employment Court is on unpacking the employer’s investigation process in detail and determining whether the process followed was fair and reasonable,” Cook told HRD.

When assessing disciplinary investigations, the Court considers factors including whether the allegations were raised with the employee, whether an impartial and independent investigation was undertaken, and whether the employee was provided with a reasonable opportunity to respond to the employer’s concerns.

“Where the Court does identify deficiencies in a disciplinary investigation process, this will often point to a conclusion that a fair and reasonable employer could not have made the decision to dismiss the employee,” Cook explained.

An example of a flawed investigation process was highlighted in QDA v EKD [2021], heard before Judge Bruce Corkill in August 2021. The employee was told that the investigation concerned a one-off incident, but the Court later found that, in reality, it surrounded a pattern of incidents that had occurred over a prolonged period.

“The Court also found the employer had identified...

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