Everyone
Dismissal
An employer can dismiss an employee for a variety of reasons – such as misconduct, poor performance, or redundancy – but must follow a fair and proper process.
Employee and employer responsibilities
| What you should know |
| If you’re an employee | If you’re an employer |
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You cannot be dismissed without good reason. |
When dismissing an employee, you must follow a fair and proper process. |
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You must be given the notice stated in your employment agreement, unless you are being dismissed for serious misconduct – in which case, you may be asked to leave right away. |
You must also have good reason for the dismissal. |
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If you believe you have been dismissed unfairly, you can raise a personal grievance. |
You must give notice according to the provisions of the employment agreement. You can, however, dismiss an employee for proven serious misconduct without giving notice or making payment for the notice period. You must, as always, have a good reason, and follow a fair and proper process. |
Dismissal
If an employer wants to dismiss an employee (end their employment), they must:
- act in
good faith Good faith means dealing with each other honestly, openly, and without misleading each other. It requires parties to raise issues in a fair and timely manner, treat the other party with respect, and give the other party information which may be referred to in any future discussions.
- have a good reason
- follow a fair and reasonable process, and
- have an open mind when dealing with problems so that outcomes are not pre-determined.
If the employer does not take these steps, the employee may be able to raise a personal grievance claim against them.
Reasons for dismissing an employee
The following are reasons why an employer may want to dismiss an employee:
- serious misconduct
- repeated misconduct
- performance issues
- during a trial period
- redundancy
- health issues.
Dismissal outside of a trial period
If an employee is dismissed and they are not within a valid trial period, they have the right to ask their employer to give the reasons for dismissal in a written statement within 60 days of finding out.
The employer needs to respond in writing within 14 days of the request being made.
Dismissal during a trial period
If an employee is dismissed during a valid trial period:
- the employer needs to explain why, if asked, but
- they can give their reasons verbally (not in writing).
Fair process when dismissing an employee
There are fair process principles an employer must follow if they want to dismiss an employee.
If dismissal is being contemplated, there are steps an employer should follow for:
- performance issues
- misconduct.
Notice period
Unless an employee is being dismissed for serious misconduct, their employer must give them the notice stated in their Employment agreements contain the terms and conditions of employment. Every employee must have a written employment agreement outlining the terms and conditions of employment. ‘Employment agreement’ has a broader meaning that includes all other documents and other agreements forming part of the contractual agreement between the employee and employer.
Summary dismissal
Sometimes, in situations of serious misconduct, an employer may be able to dismiss an employee without:
- giving them any notice, or
- any payment instead of notice.
In this instance, the employee has to leave work right away and is not paid for any notice period or part of notice period. The employee is still entitled to any statutory payment they are owed in their final pay, for example, Every employee is entitled to at least four weeks paid annual holidays (annual leave) each year when they have worked for their employer for 12 months. In some situations, an employee can be paid 8% of their gross earnings with their regular pay instead of getting paid time off (also see Pay-as-you-go)
Constructive dismissal
If an employee feels they had no choice but to resign, owing to the actions or inaction of their employer, it may be considered ‘constructive dismissal’ – and grounds for a personal grievance claim.
Other links you might find useful:
Employment Relations Authority(external link)
Sample letters for dismissing an employee
These are sample letters that employers may find useful should they decide to dismiss an employee. These letters deal with different circumstances: