Addressing employee conduct is something that most employers find a challenge. You may be concerned about how it will affect your customers, your team or your business. You may also feel pressure to act quickly. However, acting too quickly is one of the easiest ways to create a personal grievance. New Zealand employers need both a good reason for taking disciplinary action and a fair process for reaching their decision. Even where it appears obvious that an employee has done something wrong, you should investigate the matter, hear the employee’s response and keep an open mind. Employer Direct explains how to manage employee misconduct fairly and the common mistakes employers need to avoid. What is employee misconduct? Misconduct is unacceptable employee behaviour. It normally involves an employee breaking a workplace rule, failing to meet a reasonable standard of conduct or acting in a way that damages the employment relationship. Examples may include: regularly arriving late without a reasonable explanation failing to follow reasonable instructions behaving inappropriately towards a customer or colleague breaching a workplace policy using company equipment improperly taking unauthorised leave misusing confidential information dishonesty bullying, harassment or threatening behaviour serious health and safety breaches theft, fraud or violence. Not all misconduct is serious misconduct. Ordinary misconduct will usually result in a warning, particularly where it is a first incident. Serious misconduct may justify dismissal without notice, but only where the behaviour is serious enough to destroy or seriously damage the relationship of trust and confidence. The wording of the employee’s employment agreement and your workplace policies will be relevant. However, simply listing conduct as ‘serious misconduct’ does not automatically make dismissal fair. You must still consider what happened, how serious it was and whether dismissal is a reasonable response. Misconduct is different from poor performance Before starting a disciplinary process, make sure you have identified the right type of problem. Performance problems usually mean the employee is not completing their work to the required standard and may need clearer expectations, support, training and time to improve. For example: An employee who does not understand how to complete a task may have a performance issue. Misconduct normally means the employee could meet the required standard but has failed or refused to behave appropriately. For example: An employee who understands the task but deliberately refuses to do it may be committing misconduct. Do not use a disciplinary process to deal with a genuine lack of skill or ability. Most performance problems should be managed through a performance improvement process. What does New Zealand law require? The main legal requirements come from the Employment Relations Act 2000. Section 4 requires employers and employees to deal with each other in good faith. Among other things, this means being active and constructive, responsive and communicative. Neither party should mislead or deceive the other. Section 103A sets out the test used to decide whether an employer’s action was justified. The question is whether the employer’s actions, and the way the employer acted, were what a fair and reasonable employer could have done in all the circumstances. When applying this test, the Employment Relations Authority or Employment Court considers whether the employer: sufficiently investigated the allegations, raised its concerns with the employee, gave the employee a reasonable opportunity to respond, and genuinely considered the employee’s explanation before acting. A fair process must also follow the employee’s employment agreement, applicable collective agreement and workplace policies. Employment New Zealand confirms that disciplinary action requires a careful, fair and thorough process. Employer Direct provides an overview of a fair and reasonable misconduct process here. Common mistakes employers should avoid when dealing with misconduct. There are a number of mistakes that employers often mistake when handling issues with employees: Deciding the outcome before hearing the employee. Statements such as “we have decided to dismiss you” made before the disciplinary meeting are strong evidence that the process was predetermined. You can form concerns and consider possible outcomes. You cannot make the final decision until the employee has had a fair opportunity to respond. Giving vague allegations An employee cannot respond properly if they do not know who allegedly did what, when it happened or which rule may have been breached. Be specific and provide the relevant evidence. Rushing the process Pressure from customers, managers or other employees does not remove the need for fairness. Allow enough time for a proper investigation and response. At the same time, do not leave the matter unresolved for weeks without good reason. Unnecessary delays can harm everyone involved. Treating suspension as punishment Suspension is not a finding of guilt. Consider alternatives and follow a fair process before suspending, except where urgent safety circumstances make prior consultation impractical. Relying on irrelevant or expired warnings A warning for an unrelated issue will not usually support dismissal. Old or expired warnings must also be treated carefully. A warning should only be relied on where it is current, valid and relevant to the new misconduct. Applying an automatic “three strikes” rule There is no universal rule that employees must receive three warnings before dismissal. Equally, three warnings do not automatically make dismissal justified. The correct response depends on the seriousness of the conduct, the employee’s history and all surrounding circumstances. Ignoring the employee’s explanation Simply holding a meeting is not enough. You must genuinely consider what the employee says and investigate important new information. Using ‘serious misconduct’ too freely Dismissal without notice is generally reserved for conduct that causes serious damage to trust and confidence. Calling something serious misconduct in a policy does not remove the need to assess the actual circumstances. Failing to get help early It is much easier to correct a draft allegation letter than to defend an unjustified dismissal claim. Consider getting HR or employment relations advice before starting the formal process, especially where suspension or dismissal is possible. FAQs Do I always need to carry out a formal disciplinary process? No. A minor, one-off issue may sometimes be handled through an informal conversation, coaching or a reminder of expectations. However, if you may issue a formal warning or dismiss the employee, you should follow a formal process. Can I dismiss an employee for a first incident? Possibly. A first incident may justify dismissal if it amounts to serious misconduct. You must still investigate, put the allegation to the employee, consider their response and decide whether dismissal is proportionate. Does an employee have the right to a support person? Employees should be given a reasonable opportunity to bring a representative or support person to a disciplinary meeting. This could be a union representative, employment advocate, lawyer, colleague, friend or family member. Can I suspend an employee while investigating? Sometimes, but suspension should not be automatic. There should be a genuine reason, such as protecting evidence, people, the business or workplace safety. Suspension is normally on full pay and should be reviewed regularly. What if the employee refuses to attend the meeting? Find out why and offer a reasonable alternative date if appropriate. Explain that the process may continue based on the available information if they repeatedly refuse to participate without a good reason. Keep a written record of the opportunities provided. Can anonymous complaints be used? An anonymous complaint may justify making initial enquiries, but relying on it for disciplinary action can be difficult. The employee must receive enough information to understand and answer the allegation. Consider whether the information can be independently confirmed. How long should a warning remain active? There is no single period required in every case. Six or 12 months is common, depending on the seriousness of the issue. State the expiry date in the warning and follow any period contained in the employment agreement or policy. What happens if I get the process wrong? The employee may raise a personal grievance for unjustified disadvantage or dismissal. Potential remedies can include lost wages, compensation, reinstatement and contributions towards costs. The process may also damage trust within your wider team. Get the process right before making the decision Managing misconduct is not just about deciding whether an employee did something wrong. You also need to show that your investigation was sufficient, the employee knew the case against them, they had a fair chance to respond and you genuinely considered that response. Employer Direct can guide you through the process, help prepare the required correspondence and support you at disciplinary meetings. Getting advice early can help you address misconduct promptly while reducing the risk of a costly employment dispute. If you need help with dealing with an incident of employee misconduct, or would like to get your ducks in a row for any future incidents, get in touch today with Employer Direct. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

Performance Management is one of the most important responsibilities of any employer. When employees perform well, businesses are more productive, customers receive better service, and workplace morale improves. Unfortunately, many employers only think about performance when there is a problem. By that stage, issues may have been building for months, making them much harder to resolve. The good news is that most performance problems can be prevented through regular communication, clear expectations and a fair process. Why Does Performance Management Matter? Performance management isn't about finding fault with employees. It's about helping people succeed. A good performance management system helps employees understand what is expected of them, how they are performing, where they can improve, what support is available to them, and how they can develop their career. When employers invest in good performance management, they often see better productivity, higher employee engagement, lower staff turnover, fewer disciplinary issues, and reduced risk of personal grievances. Just as importantly, employees are less likely to be surprised if concerns arise because they have received regular feedback along the way. Mistake 1: Waiting Until There Is a Problem One of the biggest mistakes employers make is saying nothing while performance gradually declines. Managers sometimes hope problems will improve on their own. Others avoid difficult conversations because they don't want conflict. Months later they suddenly tell the employee they are underperforming. From the employee's perspective, this often comes as a complete surprise. Performance issues should be addressed early. A simple conversation after noticing declining performance is usually far more effective than waiting until problems become serious. Mistake 2: Not Setting Clear Expectations Employees cannot meet expectations they do not understand. Many employers assume staff know what good performance looks like. Instead, employers should clearly communicate: Job responsibilities. Performance standards. Quality expectations. Productivity expectations. Behavioural expectations. Customer service standards. Teamwork expectations. These expectations should ideally be reinforced through employment agreements, position descriptions, workplace policies, and training. Employees should have regular one-on-one meetings with the person they report to so they are aware of performance expectations and if there are any problems. Clear expectations make later performance discussions much easier. Mistake 3: Only Giving Feedback During Annual Reviews Annual performance reviews have their place, however, they should never be the first time an employee hears about a concern. Good managers provide feedback regularly. That means recognising good work as well as discussing areas for improvement throughout the year. Employees who receive regular feedback generally improve more quickly, feel more supported, are more engaged, and have greater confidence in their manager. Performance conversations should become part of everyday management rather than a once-a-year event. Mistake 4: Confusing Performance with Misconduct Poor performance and misconduct are not the same thing. Performance relates to whether an employee has the skills, knowledge, experience or capability to perform their role to the required standard. Performance issues might include: Missing deadlines. Poor quality work. Struggling to meet targets. Difficulty learning systems. Misconduct relates to behaviour or breaches of workplace rules. Misconduct might include: Refusing reasonable instructions. Dishonesty. Harassment. Serious lateness without explanation. Breaching workplace policies. Using a disciplinary process to manage genuine performance issues is often unfair and can expose an employer to legal risk. Mistake 5: Not Investigating the Cause Performance problems are often symptoms rather than the real issue. Before assuming an employee simply is not trying, employers should consider whether something else is affecting performance. Possible causes include: Lack of training. Unclear instructions. Poor supervision. Excessive workload. Health issues. Personal difficulties. Workplace conflict. Bullying or harassment. Outdated systems or equipment. Taking time to understand the cause often leads to much better outcomes. Mistake 6: Failing to Provide Support Employers have an obligation to act fairly and reasonably. If an employee is struggling, support should usually be offered before considering disciplinary action. Support might include: Additional training. Coaching. Mentoring. More regular supervision. Written guidance. Refresher training. Extra resources. Adjusted workloads where appropriate. Employees should have a genuine opportunity to improve. Mistake 7: Poor Documentation Many employers have conversations about performance but fail to record them. Months later nobody remembers exactly what was discussed. Good documentation protects everyone. Managers should keep records of performance discussions, agreed expectations, support provided, training completed, review dates, employee responses, and progress made. Documentation helps demonstrate that a fair process has been followed if concerns later arise. What Does a Good Performance Review Process Look Like? A good performance review should not feel like an interrogation. Instead, it should be a constructive discussion focused on improvement and development. A typical review process should include: 1. Preparation Both the manager and employee should have time to prepare. Performance should be assessed against agreed expectations rather than personal opinions. 2. Two-Way Discussion Employees should have the opportunity to share: Their achievements. Challenges. Training needs. Career goals. Suggestions for improvement. Good performance reviews involve listening as much as talking. 3. Balanced Feedback Recognise successes before discussing areas requiring improvement. Employees are generally more receptive to constructive feedback when they know their contributions are valued. 4. Clear Goals Finish the meeting with agreed goals that are: Specific. Measurable. Realistic. Time-based. Employees should leave knowing exactly what success looks like. 5. Follow-Up The review should not be forgotten until next year. Managers should check progress regularly and provide ongoing support. Why Do Regular Performance Conversations Matter? The best employers don't rely solely on formal reviews. Instead, they hold regular one-on-one conversations throughout the year. These meetings can be short but valuable. Topics might include current workload, recent successes, challenges, training needs, future priorities, wellbeing and give the opportunity for feedback from the manager and the employee. These conversations help identify issues early before they become significant problems, and they also strengthen trust between managers and employees. FAQs How often should performance reviews be conducted? Formal performance reviews are commonly held once or twice a year. However, managers should also have regular one-on-one conversations throughout the year to provide feedback, discuss goals and address any concerns early. Can I discipline an employee for poor performance? Poor performance should generally be managed through a fair performance management process that gives the employee clear feedback, reasonable support and an opportunity to improve. Disciplinary processes are generally more appropriate for misconduct rather than capability issues, but may be used if performance issues are prolonged and the employee is not making an effort to improve. How long should a performance improvement process last? There is no fixed timeframe. The appropriate period depends on the nature of the role, the issues involved and how long it would reasonably take for improvement to occur. Employees should be given a genuine opportunity to demonstrate improvement. What should I document during performance management? Keep records of meetings, expectations discussed, support provided, agreed actions, review dates, employee responses and any progress made. Good documentation helps demonstrate that a fair and reasonable process has been followed. Can I dismiss an employee if they fail to improve? Potentially, but only after following a fair and reasonable process. Employers should ensure the employee understands the concerns, has had appropriate support and a genuine opportunity to improve, and has been consulted before any final decision is made. Every situation is different, and obtaining professional advice before making a dismissal decision is strongly recommended. What if poor performance is caused by illness or personal issues? Employers should avoid making assumptions. Discuss the situation with the employee to understand what may be contributing to the performance concerns. Depending on the circumstances, reasonable support, workplace adjustments or medical information may need to be considered before deciding on the appropriate next steps. Effective performance management is not about catching employees doing something wrong. It is about creating an environment where people understand what is expected, receive regular feedback, and have every reasonable opportunity to succeed. By setting clear expectations, holding regular performance conversations, providing appropriate support, and following a fair process when concerns arise, employers can improve performance while significantly reducing legal risk. The best performance management systems are proactive, consistent and focused on helping people achieve their potential. If believe your performance management system could improve, or you need help creating one, we have documents in our store which may help. Alternatively, get in touch with Employer Direct today for a free consultation on your needs. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

When an employee is facing a disciplinary meeting, performance meeting, or another serious workplace discussion, one of the first things they may ask is ‘can I bring a support person?’ For many employers, particularly small businesses, it's not always clear what the rules are. Do you have to allow it? Who can they bring? What is the support person actually allowed to do? Getting this wrong can make an otherwise fair process become procedurally unfair, increasing the risk of a personal grievance. What is a support person? A support person is someone chosen by the employee to attend a workplace meeting with them to provide emotional support, practical assistance, and help them participate in the process. The purpose of a support person is not to argue the employee's case or make decisions for them. Their role is to help ensure the employee is able to understand what is happening and respond appropriately. Having a support person is an important part of ensuring a fair and reasonable process under New Zealand employment law. When should you allow a support person? Whenever a meeting could have consequences for an employee's employment, they should generally be given the opportunity to bring a support person. This commonly includes: Disciplinary meetings Serious misconduct meetings Performance management meetings where formal action may result Meetings considering a written warning or final warning Meetings considering dismissal Medical incapacity meetings Some restructuring or redundancy consultation meetings Any formal investigation interview where the employee may need to respond to allegations Although not every workplace meeting requires a support person, if the outcome could affect an employee's job, it is good practice to offer them the opportunity. A simple sentence in your meeting invitation is usually enough: "You are entitled to bring a support person and/or representative of your choice to this meeting." Giving this option demonstrates good faith and helps protect the integrity of your process. Is allowing a support person a legal requirement? The Employment Relations Act 2000 does not specifically say every employee must have a support person. However, employers are required to act in good faith and follow a process that is both fair and reasonable. The Employment Relations Authority and the Employment Court regularly consider whether an employee was given a genuine opportunity to seek support before important meetings. Refusing an employee's reasonable request for a support person, or insisting the meeting proceed immediately without giving them time to arrange one, may make the process unfair. Do I have to allow the meeting to be delayed? If an employee asks for a short delay so their chosen support person can attend, it is usually reasonable to agree. For example if their support person is unavailable until tomorrow, they need a day or two to arrange someone, or they need to travel to the meeting. On the other hand, an employer does not have to accept repeated or unnecessary delays if they appear designed simply to avoid the process. As with most employment issues, reasonableness is the key. Who can be a support person? In most cases, the employee can choose whoever they wish. Common examples include a family member, a friend, a trusted colleague, a union delegate or an employment advocate/ lawyer. Some employers mistakenly believe only work colleagues can attend. This is not correct. The employee should generally be free to choose someone they trust. There may be limited circumstances where an employer objects to a particular support person, for example, where they present a genuine safety concern or create a conflict of interest, but these situations are uncommon. Is there a difference between a support person and a representative? Although many people use the terms interchangeably, they have different roles. A support person is primarily there to provide assistance and moral support. A representative (such as an employment advocate, union organiser or lawyer) may actively represent the employee's interests. That representative may ask questions, clarify evidence, make submissions, raise concerns about the process, and help explain the employee's position. Many employees bring someone who performs both roles. If your meeting invitation allows a ‘support person and/or representative’, there is generally no issue if the person's chosen support person also participates as their representative. What is a support person allowed to do? The answer depends partly on who they are. A family member or friend will usually take notes, provide reassurance, remind the employee of important information, and quietly discuss questions during breaks. An employment advocate or lawyer may take a much more active role by asking for clarification, requesting documents, responding to allegations, identifying procedural concerns and making submissions before any decision is made. The key point is that their participation should help the process, not prevent it. A well-managed meeting should remain respectful and productive even when representatives speak on behalf of the employee. Can I stop a support person from speaking? Many employers believe a support person should simply sit quietly. That is often unrealistic, particularly where the support person is also acting as the employee's representative. A better approach is to explain the expectations at the start of the meeting. For example, you may ask that everyone be treated respectfully, only one person speaks at a time, the employee will have opportunities to answer questions, and representatives may ask questions or make submissions at appropriate times. If someone becomes disruptive, aggressive or prevents the meeting from progressing, you may pause the meeting and discuss how to proceed. Removing a support person should be a last resort and only where their behaviour genuinely makes the meeting impossible to continue fairly. Can an employee refuse to attend without a support person? If the employee has had a reasonable opportunity to organise one but chooses not to, the meeting may still proceed. However, if they have not had sufficient notice or their request for a reasonable postponement has been refused, requiring them to continue without support may create procedural problems. Each situation should be considered on its own facts. FAQs Does every disciplinary meeting require a support person? Employees should generally be offered the opportunity to bring one whenever the meeting could affect their employment. Can I refuse a support person? Only in exceptional circumstances. Most employees should be allowed to choose the person they trust. Can the support person answer questions for the employee? The employee should usually answer questions themselves, although a representative may make submissions, ask questions, or clarify matters during the meeting. Can I insist on holding the meeting immediately? Not usually. Employees should be given reasonable time to arrange a support person. Can a lawyer attend? Yes. Employees are generally entitled to bring a lawyer, employment advocate, union representative or another person of their choice. What happens if I don't allow a support person? If refusing a support person makes the process unfair, the employee may have grounds to challenge the disciplinary process or raise a personal grievance. Allowing an employee to have a support person is about more than following good practice, it is about ensuring the employee has a fair opportunity to understand the concerns, respond to them, and participate meaningfully in the process. Employers who approach these meetings professionally, respectfully and with an open mind are far more likely to reach decisions that are both fair and legally defensible. If you're unsure how to manage a disciplinary or performance process, obtaining advice early can help protect both your business and your employees. Contact Employer Direct to discuss your approach to disciplinary or performance meetings and processes. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

Managing employee issues is one of the most challenging parts of being an employer. Whether you are dealing with poor performance, misconduct, absenteeism, or workplace conflict, it can be tempting to jump straight to a solution. However, in New Zealand employment law, it is not enough to simply make the right decision. Employers must also follow a fair and reasonable process before making decisions that could affect an employee's employment. Many employers who find themselves facing a personal grievance have not necessarily made the wrong decision, they have simply failed to follow a fair process. Understanding what a fair and reasonable process looks like can help protect your business, maintain positive workplace relationships, and reduce the risk of costly disputes. What Does Fair and Reasonable Process Mean? The concept of a fair and reasonable process comes from the Employment Relations Act 2000. When considering whether an employer has acted fairly, the Employment Relations Authority (ERA) and Employment Court will often ask: 'What would a fair and reasonable employer have done in all the circumstances at the time?' This means employers must: Act in good faith. Gather sufficient information. Keep an open mind. Allow employees an opportunity to respond. Consider employee feedback before making decisions. Make decisions based on facts rather than assumptions. A fair process is not necessarily a perfect process. Employers are expected to act reasonably, not flawlessly. When Is a Fair and Reasonable Process Required? Many employers assume formal processes only apply when dismissing someone. In reality, a fair and reasonable process is required whenever an employment decision could significantly affect an employee. Examples include: Disciplinary Issues A disciplinary process may be required where there are allegations of: Misconduct, Serious misconduct, Breach of company policies, Inappropriate behaviour, Poor attendance, Health and safety breaches, or Failure to follow reasonable instructions. Performance Management A performance process may be required where an employee is not meeting expectations, making repeated mistakes, failing to achieve agreed objectives, or struggling to perform the role. Bullying and Harassment Complaints Employers must investigate complaints fairly and objectively before reaching conclusions. Medical Incapacity If an employee is unable to perform their role due to illness or injury, employers must gather information and consult with the employee before making decisions. Restructuring and Redundancy Employees must be consulted before decisions are finalised. Flexible Working Requests Employers must properly consider requests and provide reasons if declining them. Why Is a Fair Process So Important? A fair process serves several purposes. It Protects Employees Employees deserve to know what concerns exist, what information is being relied upon, what outcomes are being considered, and how they can respond. It Protects Employers A documented and well-managed process demonstrates that decisions were made fairly and reasonably. If an employee later raises a personal grievance, evidence of a proper process can be critical. It Leads to Better Decisions When employers gather information and hear all sides of a situation, they are more likely to make accurate and defensible decisions. It Supports Workplace Culture Employees are more likely to trust leadership when they see issues being handled fairly and consistently. What does a Fair and Reasonable Process look like? While every situation is different, most fair processes contain several common elements. 1. Identify the Issue The first step is clearly identifying the concern. The employer should ask: What exactly has happened? What evidence exists? What policies or expectations may have been breached? Is the issue performance-related or conduct-related? Employers should avoid making assumptions or rushing to conclusions. 2. Gather Information Before taking action, employers should collect relevant information. This may include: Witness statements Documents Emails CCTV footage Timesheets Customer complaints Performance data Information gathering should be objective and balanced. The goal is to establish facts, not build a case against the employee. 3. Consider Whether Suspension Is Necessary In serious situations, employers may consider suspension while investigations occur. Suspension should only occur when: It is genuinely necessary. Alternatives have been considered. The employee has had an opportunity to comment. Suspension is not a punishment. It is a temporary measure used to protect the integrity of a process. 4. Notify the Employee of the Concerns Employees must be informed of what the concerns are, what information supports those concerns, why the issue is being investigated, and what potential outcomes could result. This information should generally be provided in writing. The employee cannot properly respond if they do not understand the allegations. 5. Allow the Employee Time to Respond Employees should be given a reasonable opportunity to review information, seek advice, and prepare a response. Rushing employees into meetings can undermine the fairness of the process. 6. Offer Representation or a Support Person Employees should generally be advised that they may bring a support person, a union representative and/or an employment advocate or lawyer. This helps ensure employees feel supported and able to participate effectively. 7. Listen With an Open Mind One of the most common mistakes employers make is deciding the outcome before hearing from the employee. A fair employer listens carefully, considers explanations, reviews all evidence, and remains open to alternative conclusions. The process must be genuine, not a box-ticking exercise. 8. Investigate Further if Necessary Sometimes new information emerges during a meeting. If that happens, employers may need to interview additional witnesses, gather further evidence, and clarify the facts. Taking additional time is often preferable to making a rushed decision. 9. Make a Provisional Decision In more serious situations, particularly where warnings or dismissal are being considered, employers may issue a provisional decision. This explains what findings have been made, what outcome is being considered, and why that outcome is being considered. Employees are then given a final opportunity to comment before a decision is made. 10. Make a Final Decision Once all information has been considered, the employer can make a final decision. The decision should be reasonable, proportionate, consistent with previous cases, and supported by evidence. The outcome should be communicated clearly and preferably in writing. Important Definitions Employers Should Understand Good Faith Good faith requires employers and employees to be active and constructive in maintaining a productive employment relationship. This includes being honest, communicative, and responsive. Misconduct Misconduct is behaviour that falls below expected standards but does not necessarily destroy the employment relationship. Examples may include: Minor policy breaches Inappropriate language Unauthorised breaks Occasional lateness Serious Misconduct Serious misconduct is behaviour that fundamentally damages trust and confidence. Examples may include: Theft Violence Serious dishonesty Serious health and safety breaches Natural Justice Natural justice means employees must know the allegations against them, be given relevant information, have an opportunity to respond, and have their response genuinely considered. Natural justice sits at the heart of every fair process. What Happens If an Employer Does Not Follow a Fair Process? Failing to follow a fair and reasonable process can have significant consequences. Employees may raise personal grievances for unjustified dismissal, unjustified disadvantage, discrimination, and harassment. The Employment Relations Authority may award lost wages, compensation for humiliation, loss of dignity, and injury to feelings, and reimbursement of legal costs. In some cases, employees may seek reinstatement into their role. Poorly managed processes can reduce trust and morale among remaining employees. Employment disputes can cause reputational damage affecting recruitment, retention, customer confidence, business reputation, and workplace culture. When Should Employers Seek External Help? Many employee issues can be managed internally. However, there are situations where external support can be invaluable. Consider obtaining advice when: Dismissal Is Being Considered The risks increase significantly when termination is a possible outcome. Serious Misconduct Allegations Exist Investigations involving theft, fraud, violence, bullying, or serious safety breaches often require careful management. The Employee Has Raised a Personal Grievance Once a grievance is raised, employers should seek advice early. There Are Complex Medical Issues Medical incapacity situations can involve privacy, health information, and legal obligations. The Situation Is Emotionally Charged Independent advice can help ensure decisions remain objective. You Are Unsure About the Correct Process Seeking advice early is usually far less expensive than defending a grievance later. FAQS Can I dismiss an employee if I know they have done something wrong? Not immediately. Even where misconduct appears obvious, employees must generally be informed of the allegations, given relevant information, and provided an opportunity to respond before a decision is made. Do I always need to hold a formal meeting? Not necessarily. Minor issues may be dealt with informally. However, formal meetings are generally required where disciplinary outcomes or warnings are being considered. How much time should I give an employee to respond? This depends on the circumstances. Employees should have enough time to understand the concerns, review information, seek advice, and prepare a response. Can I suspend an employee while I investigate? Possibly, but suspension should only occur where genuinely necessary and after the employee has had an opportunity to comment on the proposed suspension. What is the difference between performance management and discipline? Performance management focuses on helping an employee improve capability and performance. Discipline focuses on addressing misconduct or behavioural concerns. Can I investigate a complaint without telling the employee? You may gather preliminary information, but employees must generally be informed of allegations and given an opportunity to respond before findings are made. Do employees have a right to bring a support person? In most formal employment meetings, employees should be advised they may bring a support person, representative, advocate, or union delegate. What is the biggest mistake employers make? The most common mistake is deciding on an outcome before hearing the employee's explanation. Keeping an open mind throughout the process is essential. When should I get professional HR or employment relations advice? Whenever dismissal is being considered, a personal grievance has been raised, serious misconduct is alleged, or you are uncertain about the correct process, obtaining advice early is strongly recommended. A fair and reasonable process is one of the most important responsibilities an employer has. Good employers do not simply focus on reaching the right outcome, they focus on reaching that outcome the right way. When employee issues arise, taking time to gather information, communicate openly, hear the employee's perspective, and genuinely consider all relevant factors can make the difference between a defensible decision and an expensive employment dispute. The process itself is often just as important as the final decision. If you have a workplace issue and are unsure of the how to proceed, or would like to talk about putting the processes in place before an issue arises, get in touch today for a consultation or audit of your processes. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

Running a business involves more than simply hiring good people and hoping everything works out. Every workplace will face challenges from time to time. Employees may disagree, misunderstand expectations, or behave in ways that create problems. This is where workplace policies become incredibly important. Good workplace policies help set expectations, create consistency, reduce risk, and provide a roadmap when issues arise. They are one of the simplest and most effective tools employers can use to manage employee relationships and avoid disputes. What Is a Workplace Policy? A workplace policy is a written document that explains the standards, expectations, and processes within your business. Policies tell employees: What behaviour is expected What rules apply in the workplace What procedures they must follow What may happen if rules are breached Policies are different from employment agreements. An employment agreement sets out the terms of employment, while policies provide guidance on how work is carried out. Together, they create the framework for a productive and legally compliant workplace. Why Are Workplace Policies Important? Policies which are relevant, regularly reviewed and effective communicated are important for a number of reasons. They Set Clear Expectations Employees cannot be expected to follow rules they do not know exist. Policies remove uncertainty by clearly explaining what employees should and should not do. This reduces misunderstandings and helps everyone work to the same standard. For example, a social media policy may explain: What employees can post online Confidentiality obligations Expectations when representing the business publicly Without clear guidance, employees may unknowingly put the business at risk. They Promote Consistency and Fairness Employers should treat employees consistently. Policies help ensure that similar situations are managed in similar ways. Consistency is particularly important when dealing with performance issues, misconduct, leave requests, or flexible working arrangements. Inconsistent treatment can lead to allegations of unfairness or personal grievances. They Reduce Legal Risk Many employment disputes arise because expectations were unclear or processes were not followed correctly. Well-written policies help employers demonstrate that employees knew the rules, expectations were communicated, and decisions were made fairly. If an employment dispute reaches mediation or the Employment Relations Authority, documented policies can be valuable evidence. They Support Workplace Culture Policies are not simply about rules and discipline. They also communicate the values of your business. Policies around bullying, harassment, health and safety, and flexible working help create a respectful and positive workplace culture. Good employees often stay longer in workplaces where expectations are clear and people are treated fairly. How Do Workplace Policies Relate to Employment Legislation? Workplace policies cannot override New Zealand employment law. Instead, policies should support and reflect legal obligations. For example: Legislation Application to policy Employment Relations Act 2000 The Employment Relations Act requires employers and employees to deal with each other in good faith. Policies should encourage fair treatment, communication, and procedural fairness. Holidays Act 2003 Leave policies should reflect employees' legal entitlements to annual leave, sick leave, bereavement leave, and family violence leave. Employers cannot create policies that provide less than the minimum legal requirements. Health and Safety at Work Act 2015 Employers have duties to provide a safe workplace. Health and safety policies help demonstrate that risks have been identified and managed appropriately. Human Rights Act 1993 Policies relating to discrimination, bullying, and harassment should align with anti-discrimination laws. Employers should ensure policies do not unfairly disadvantage employees on prohibited grounds. If legislation changes, policies should be reviewed and updated to remain compliant. How Can Policies Be Communicated Effectively to Employees? Having policies sitting unread in a folder is not enough. A policy only works if employees know about it and understand it. Some good ways to ensure that employees know about and understand workplace policies are as follows. Introduce Policies During Induction or Onboarding New employees should receive policies when they start employment. Employers should provide copies of policies, explain key expectations, answer questions, and record that policies were received. Many employers ask employees to sign an acknowledgement confirming they have read and understood workplace policies. Make Policies Easy to Access Policies should be available whenever employees need them. Options include staff handbooks, intranet systems, shared drives, employee apps, or printed manuals. Employees should not have to search for important information. Regularly Remind Employees Policies should not only be discussed once during induction. Regular reminders may include team meetings, toolbox talks, training sessions, or email updates. Regular communication helps keep policies current and reinforces expectations. Use Plain Language Policies should be easy to understand. Avoid legal jargon or overly complicated language. If employees cannot understand a policy, they are less likely to follow it. How Can I Be Sure Employees Understand The Policies? Simply providing a document does not guarantee understanding. Employers should actively check whether employees understand what is expected. Providing training on important policies such as health and safety, bullying and harassment, privacy obligations, and workplace conduct, can help minimise misunderstandings and breaches of policy. Training helps employees apply policies in real situations. Maintaining records of policy acknowledgements, training attendance, and refresher sessions can help identify gaps and plan for further training or education. These records may also become important if disputes arise later. What Happens if an Employee Breaches a Policy? A policy breach does not automatically justify disciplinary action or dismissal. Employers must follow a fair process including an investigation and disciplinary process if appropriate. The response should be proportionate to the breach. What Are Some Common Mistakes Employers Make With Policies? Having Policies But Never Using Them Policies only work if they are actively used and referred to. Managers should apply policies consistently and regularly. Policies That Are Out of Date Employment law changes over time. Policies should be reviewed periodically to ensure they remain accurate and legally compliant. Applying Policies Inconsistently Treating employees differently without good reason can create legal risk. Consistency promotes fairness and trust. Treating Policies as Automatic Rules Even where a policy has been breached, employers must still conduct a fair investigation and disciplinary process. Policies guide decision-making, they do not replace procedural fairness. Good policies are not about catching employees out. They can help create workplaces where people understand expectations, feel treated fairly, and know how issues will be managed. Clear policies reduce conflict, support good communication, improve consistency, protect businesses from risk, and ultimately create better workplace culture. When used effectively, policies become one of the most valuable management tools an employer can have. FAQs Do employees have to sign workplace policies? While not legally required in every case, it is best practice to obtain written acknowledgement that employees have received and understood workplace policies. Can an employer change a policy at any time? Usually yes, provided changes are reasonable and consistent with employment agreements and legislation. Significant changes should be communicated and, in some cases, consulted on. Can a policy override employment law? No. Employment law always takes priority. Policies cannot provide less than minimum legal entitlements. Can an employee be dismissed for breaching a policy? Possibly, but only if the employer follows a fair process and dismissal is proportionate to the seriousness of the breach. How often should policies be reviewed? Many employers review policies every one to two years, or sooner if legislation changes or workplace practices evolve. What if an employee says they never saw the policy? This highlights the importance of keeping records of inductions, training, and signed acknowledgements. Employers should be able to show that policies were communicated properly. Do small businesses need workplace policies? Absolutely. Small businesses can face the same employment risks as larger organisations. Clear policies often help small employers avoid costly disputes. Workplace policies are only effective if they are legally compliant, clearly communicated, and applied fairly. If you are unsure whether your policies are up to date, or you are dealing with an employee who may have breached a policy, obtaining advice early can often prevent small issues from becoming larger disputes. Employer Direct works with New Zealand businesses to develop practical workplace policies, manage employee issues, and reduce employment risk before problems escalate. If you would like to discuss setting up or reviewing your current workplace policies, get in touch today. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

Most business owners don't set out to create employment problems. You're trying to run a business, serve customers, manage cashflow, support your team, and somehow still make it home in time for dinner. Yet every year, employers across New Zealand find themselves dealing with personal grievances that consume time, money, energy, and focus. The reality is that most personal grievances aren't raised because an employer is intentionally unfair. They're often the result of rushed decisions, poor communication, missing documentation, or not following the correct process. The good news is that most personal grievances are preventable. Understanding the most common causes can help you identify risks early and put simple systems in place to protect your business, your people, and your peace of mind. What Is a Personal Grievance? A personal grievance is a legal claim raised by an employee when they believe they have been treated unfairly by their employer. By far the most common grievances we see are unjustified dismissal and unjustified disadvantage. These are also the grievances most employers accidentally create. What Are The Biggest Areas Of Risk For Personal Grievances? 1. Poor Performance Management One of the most common mistakes employers make is failing to properly manage poor performance. An employee isn't meeting expectations, dadlines are missed, and mistakes keep happening. Customers complain and the frustration builds. Eventually, the employer reaches breaking point and decides enough is enough. The problem in most employment disputes relating to performance management is that employees often have never been clearly told there was a problem. Common mistakes include no documentation of performance concerns, expectations that were never clearly communicated, a lack of opportunity for employees to improve, a lack of support or training offered, and dismissals which are rushed through. Performance management should never come as a surprise to an employee. It is important for employers to: Set clear expectations from the start, Hold regular performance conversations, Document any concerns when they arise, Provide relevant support and coaching, and Give employees a reasonable opportunity to improve. A good performance management process, well executed, can protect both the employee and the employer. 2. Disciplinary Processes Done Incorrectly Sometimes employers know there is a problem but fail to follow the correct disciplinary process. Perhaps an employee has breached a policy, behaved inappropriately, or committed misconduct. The issue isn't necessarily the concern itself, the issue is often the process. Common mistakes of employers in disciplinary processes include predetermining the outcome, failing to investigate properly, not allowing the employee to respond, making decisions too quickly, and poor documentation. In order to avoid these problems natural justice must always be followed. That means: Investigating fairly, Keeping an open mind, Providing all relevant information, Allowing the employee to have a support person, and Genuinely considering their explanation. Even if the outcome seems obvious, skipping steps can create significant risk. A good decision made through a bad process can still result in a successful personal grievance. 3. Poor Communication Many workplace disputes begin with misunderstandings. Employees often raise grievances because they feel ignored, disrespected, or left in the dark. Business owners are busy, so conversations get rushed, assumptions are made, and unfortunately, what seems obvious to you may not be obvious to your employee. Common examples of where lack of communication causes problems include: Changes made without consultation, Conflicting instructions, Lack of feedback, Unclear expectations, and Difficult conversations avoided. Strong communication solves many employment issues before they become formal disputes. It is important to focus on being clear and consistent, having regular check-ins with employees, confirming important conversations in writing, encouraging questions, and addressing concerns early. Good communication builds trust, and trust can reduce conflict. 4. Workplace Bullying and Harassment Concerns Bullying complaints are becoming increasingly common. Not every difficult conversation is bullying, and not every performance discussion is harassment, however, employers have a legal obligation to provide a safe workplace. Common warning signs that bullying or harassment may be present in your workplace include multiple complaints about manager behaviour, exclusion of some employees from workplace activities, repeated unreasonable criticism of individuals, intimidating behaviour, and complaints which go ignored or are dismissed without process. Creating a workplace culture where concerns can be raised safely is a good way to reduce thes issues. Employers should: Have clear workplace behaviour policies, Train managers appropriately, Take complaints seriously, Investigate concerns promptly, and Address inappropriate behaviour early. Ignoring complaints rarely makes them disappear, and more often, sees them escalate. Having clear policies and procedures in place, taking complaints seriously as they arise, and seeking advice from legal experts is the best way to ensure swift and effective resolution. 5. Restructuring and Redundancy Errors Business conditions change. Sometimes roles genuinely need to change or disappear. The challenge is ensuring the process is fair. Many employers focus heavily on the business reasons for restructuring but overlook the consultation requirements. Common mistakes during change or restructuring include decisions made before consultation, insufficient information provided, consultation treated as a formality, poor record keeping, and rushing the process. A genuine change or restructuring process requires: A genuine business reason, Meaningful consultation, Consideration of feedback from affected employees, Proper documentation, and A fair decision-making process. Employees don't have to agree with the outcome of a restructure, but they must have a genuine opportunity to participate in the process. 6. Inconsistent Treatment of Employees Nothing fuels a grievance faster than perceived unfairness. Employees notice when rules apply differently to different people. For example, when one employee receives a warning while another doesn't, where policies are enforced selectively, when favouritism appears to exist, and when similar situations receive different outcomes. Consistency matters. When addressing concerns, employers should ask themselves "How would I handle this if it involved another employee?" Document decisions and ensure managers understand expectations around fairness and consistency. 7. Poor Employment Documentation Many employers don't realise they have a problem until a dispute arises. Then they might discover outdated employment agreements, missing policies, meetings without meeting notes, warnings that weren't documented, and key conversations not being recorded. Suddenly, it becomes one person's word against another's. Good documentation isn't about creating paperwork, it's about creating clarity. Employers should keep records of: Employment agreements, Performance discussions, Warnings, Investigations, Consultation processes, and Significant workplace conversations. Good records can make all the difference when a dispute arises. When Do I Need To Ask For Help? One of the biggest mistakes employers make is waiting too long to get professional help. Many business owners only seek advice after receiving a personal grievance letter. At that point, options may already be limited. The best time to get help is before things escalate. Seek advice immediately if: An employee mentions raising a grievance, You are considering disciplinary action, You are considering dismissal, A bullying complaint is made, A serious misconduct issue arises, A restructuring is being considered, You receive correspondence from an employee representative or lawyer, or You are unsure about the next step in a formal process. A conversation with a legal expert at the start of an issue can prevent months of stress later. What Should You Do If a Personal Grievance Is Raised? First, don't panic. Receiving a grievance doesn't automatically mean you've done something wrong. It also doesn't mean the matter will end up before the Employment Relations Authority. Many disputes can be resolved early when handled correctly. Stay calm, gather information about the issue to build a clear picture of what occurred, and get professional advice from a legal expert to help you understand your position, identify risks, and determine the best path forward. FAQs How long does an employee have to raise a personal grievance? Generally, an employee must raise a personal grievance within 90 days of the action or issue occurring. Can I dismiss an employee for poor performance? Yes, but only if you follow a fair and reasonable performance management process and provide the employee with an opportunity to improve. What is the difference between misconduct and poor performance? Poor performance relates to an employee's ability to meet required standards. Misconduct relates to behaviour that breaches workplace expectations or policies. Can a personal grievance be resolved without going to the Employment Relations Authority? Yes. Many grievances are resolved through discussion, negotiation, mediation, or other early resolution processes. What if I think the employee is wrong? Even if you believe the employee is mistaken, it's important to take the concern seriously and seek advice. Dismissing concerns without investigation can increase risk. Do I need HR support if I only have a small team? Absolutely. In fact, smaller businesses often have less capacity to absorb the financial and emotional cost of a personal grievance. Having expert support available can be invaluable. What is the best way to protect my business? Strong employment agreements, clear policies, good communication, proper documentation, consistent management practices, and early professional advice are your best safeguards. The average business owner doesn't lose sleep over HR when everything is running smoothly. But one poorly managed employment issue can quickly become a distraction from the work that actually grows your business. The best protection isn't luck, it's having the right systems, processes, documentation, and support in place before problems arise. Employment issues are rarely convenient. Having expert advice available when you need it can save you time, stress, money, and uncertainty. After all, employing people should make your business stronger,not become a source of constant worry. If you're dealing with an employee issue, considering disciplinary action, managing performance concerns, or responding to a personal grievance, don't wait until the situation escalates. A quick conversation today could save you thousands of dollars and countless hours tomorrow. Contact Employer Direct for an honest assessment of your risks, practical advice, and a clear plan to protect your business and your people. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

Hiring a new employee can sometimes feel like a gamble. You want to grow your business, build a great team, and protect the culture you’ve worked hard to create. But what happens if the new hire isn’t the right fit? That’s where a 90-day trial period can help. When used correctly, a 90-day trial gives employers the chance to assess whether a new employee is suitable for the role, while reducing the risk of a personal grievance claim for dismissal. Saying that, it is important that you get all the steps right to ensure that the trial period is valid. Failure to do that means the employee may still be able to raise a personal grievance, and the costs can be significant. What Is a 90-Day Trial Period? A 90-day trial period allows an employer to dismiss a new employee within their first 90 days of employment without the employee being able to raise a personal grievance for unjustified dismissal. However, employees can still raise other types of personal grievances, such as discrimination, harassment, retaliation or unjustified disadvantage. A trial period is not a free pass to treat employees unfairly. Employers still need to act in good faith throughout the employment relationship. Who Can Use a 90-Day Trial? Most NZ employers can use 90-day trial periods, regardless of business size. But there are strict rules around which employees are eligible. A valid 90-day trial can only be used when: The employee has never worked for you before, The employee signs the employment agreement before starting work, and The employment agreement clearly states there is a 90-day trial period. If any of these requirements are missing, the trial period is likely invalid. Who Is NOT Eligible for a 90-Day Trial? An employee is not eligible if they have worked for you before. This includes: Casual employees, Temporary workers, Seasonal staff, Employees rehired after leaving, and Staff who did unpaid trial shifts that could legally count as work. An employee is not eligible if they started work before signing their employment agreement. This is one of the most common mistakes employers make. If the employee starts training, attends induction, begins shadowing, or does any work before signing the employment agreement containing the trial clause, the trial period may be unenforceable. That includes: 'Just coming in to meet the team,' Paid training before signing, Trial shifts, and Starting on a handshake agreement If work has started, it may already be too late. What Must Happen for the Trial Period to Be Valid? To protect your business, every one of these steps matters. The trial period must be in writing The employment agreement must clearly include a valid 90-day trial clause. Verbal agreements are not enough. The employee must sign BEFORE starting work This is critical. The signed agreement needs to be completed before the employee: Starts training, Attends induction, Does any work, and Begins their first shift. Even if everyone intended to sign later, the law focuses on when work actually started. The employee must genuinely be a new employee You cannot use a trial period for an existing employee changing roles within the business. The dismissal must happen within the 90 days If you decide the employee is not the right fit, notice of termination must be given within the 90-day period. Missing the deadline can remove your protection. You still need to act fairly and reasonably While a valid trial period limits unjustified dismissal claims, employers still need to communicate clearly, give feedback, behave professionally, follow good process, and act in good faith. Good HR practice still matters. Common Mistakes Employers Make When Putting Employees On A 90-Day Trial Here are some of the biggest issues we see: The employee starts work before the paperwork is finished This is the number one problem. Busy employers often think they’ll sort the contract later. Unfortunately, later can become very expensive. Copying old employment agreements Old templates may contain outdated or invalid clauses. Employment law changes regularly, and generic online templates can create major risks. Assuming casual workers count as new. If someone has already worked for your business, even casually, they may not qualify for a trial period. No performance conversations during the 90 days A trial period should never replace good leadership. Regular feedback and documented conversations are still important. What Should Employers Do During the 90 Days? The best employers use trial periods as a structured onboarding process, not just a safety net. We recommend: Clear expectations from day one, Regular check-ins, Written notes of performance concerns, Early conversations if issues arise, Proper training and support, and Honest communication. Often, problems can be fixed early with the right guidance. And if the employee does turn out to be a great fit? Fantastic. You’ve built a stronger team member with better systems and support. FAQs Can an employee challenge a dismissal during a trial period? They usually cannot raise an unjustified dismissal claim if the trial period is valid. However, they may still raise other grievances, such as discrimination or bullying claims. Can I use a trial period for existing staff moving into a new role? No. Trial periods only apply to genuinely new employees who have never worked for your business before. Does the employee need a copy of the agreement before signing? Yes. Employees must be given time to review the agreement and seek advice before signing. Rushing this process can create risk. Can I dismiss someone on day 89? Yes, as long as notice is given within the 90-day period and the trial clause is valid. Do I need to give warnings during a trial period? Legally, a formal disciplinary process may not be required in the same way as standard dismissals. But good communication, feedback, and fair treatment are still strongly recommended. A 90-day trial period can be a useful tool for protecting your business when hiring new staff but the rules are strict. One missed step, especially around signing the agreement before work starts, can completely remove the protection employers thought they had. For busy business owners already juggling staffing, operations, customers, and family life, it’s easy to overlook the details. That’s why having proper systems and expert HR support matters. At Employer Direct, we help employers get their employment agreements, onboarding processes, and HR systems right from the start so you can focus on running your business with confidence. Do you need help reviewing your employment agreements or onboarding process? Get in touch with the Employer Direct team for practical advice and support. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

Working from home seems like a simple request for an employee to make. But for employers, flexible working requests can quickly become complicated if they are not handled properly. As a business owner, you are already juggling staff, customers, deadlines, compliance, and cashflow. The last thing you need is uncertainty around employment law or team conflict because one employee wants different working arrangements. The good news? With the right process, you can handle flexible work requests fairly, legally, and confidently while still protecting your business operations. What Is Flexible Working? Flexible working means any change to the usual way an employee works. This could include: Working from home Hybrid working (part office, part home) Different start and finish times Compressed work weeks Reduced hours Changing workdays Job sharing Flexible rostering Some requests are temporary. Others are permanent. Since COVID-19, working from home has become more common across New Zealand workplaces. But flexibility does not automatically mean every request must be approved. What Does New Zealand Law Require? Under the Employment Relations Act 2000, all employees in New Zealand have the legal right to request flexible working arrangements. This applies to: Full-time employees Part-time employees Casual employees Employees with caregiving responsibilities Employees without children or dependants An employee can request changes to hours of work, days of work, and place of work. That includes working from home. Do I Have to Say Yes? Employers do not have to approve every request. However, employers must: Consider the request properly, Respond within one month, Base decisions on genuine business reasons, and Act in good faith A rushed or emotional decision can create legal risk. If an employee believes their request was not fairly considered, it could damage trust, morale, or even lead to a personal grievance. There are a number of key factors to consider when deciding whether to approve a request for flexible working conditions, particularly in relation to remote working. Can the Job Actually Be Done Remotely? Not every role is suitable for working from home. Consider: Does the employee need physical equipment? Are they customer-facing? Do they supervise others in person? Is confidentiality an issue? Does the role require collaboration onsite? The key question is can the employee still perform the role effectively? What Impact Will It Have On Productivity? Some employees thrive working from home. Others may struggle with distractions, motivation, communication, or time management. You will need to consider their previous performance history, reliability, ability to work independently, communication skills, and output expectations. This should be based on evidence, not assumptions. What Impact Will It Have On Health and Safety Obligations? If an employee works from home, employers still have health and safety responsibilities under the Health and Safety at Work Act. That means considering: Safe workstation setup Ergonomics Electrical safety Mental wellbeing Fatigue and isolation risks You may need a work-from-home assessment, a checklist for employees, photos of the workspace, and relevant health and safety policies. Working from home does not remove your obligations for providing a safe working environment. What Impact Will It Have On Other Employees? One flexible arrangement can affect everyone else. Ask yourself: Will others need to pick up extra work? Could this create resentment? Will communication suffer? Does this affect customer service? Is it fair and consistent with similar situations? Consistency also matters. If you approve one employee but decline another similar request, you need a genuine reason for the difference. What Impact Will It Have On Business Costs? Flexible work can create additional costs, such as technology, equipment, software, security systems, and internet or phone allowances. Employers will need to decide what the business will provide, what the employee will supply, and how any incurred expenses are handled. This should be put in writing to ensure clarity.. What Impact Will it Have On Cybersecurity and Confidentiality? Working remotely can increase privacy and data risks. Consider the need for secure logins, password protection, use of personal devices, keeping client information confidential, and storage of documents at home. This is especially important for businesses handling sensitive customer or employee data. How Should Flexible Working Arrangements Be Documented? Documentation is critical. If it is not written down properly, misunderstandings can happen. Whether you approve or decline the request, keep records of: The employee’s request, Meetings and discussions, Factors considered, Final decision, and Reasons for the decision. This protects both the business and the employee. If the request is approved, do not rely on verbal agreements. Create a written flexible working agreement or variation to the employment agreement. This should include: Workdays and hours Location of work Trial period (if applicable) Communication expectations Availability requirements Equipment responsibilities Health and safety expectations Review dates Performance expectations Confidentiality obligations A trial period of a few months can be very helpful to assess whether the flexible arrangements work for the employer and the employee. It is also beneficial to include ongoing reviews to the arrangement should the situation change in the future. This gives both sides flexibility if things are not working. If you decline the request, you must explain why. The law allows employers to refuse requests for genuine business reasons, including: Inability to reorganise work, Negative impact on quality or performance, Additional cost burden, Lack of capacity, Health and safety concerns, Impact on customer service, or Insufficient work during requested hours. The key is showing the request was genuinely considered. Avoid vague responses and, instead give clear business-based reasoning. Professional, respectful communication matters. There are some common mistakes employers can make when considering flexible working requests: Saying Yes Too Quickly Many employers approve requests informally without considering long-term impacts. Then problems appear later around performance, fairness, or availability. Treating Everyone the Same Flexible work should be considered individually. Different roles have different operational needs. Forgetting Health and Safety Home offices still create employer obligations. Ignoring this can create risk. Not Updating Employment Agreements If working arrangements change permanently, documentation should change too. Letting Temporary Arrangements Drift A temporary arrangement can quietly become permanent if not reviewed properly. Always set review dates and adhere to them. If you approve flexible work, set clear expectations early. Successful arrangements usually include: Clear communication rules, Regular check-ins, Measurable performance expectations, Defined availability, Team connection, and Good systems and processes. FAQs Can an employee demand to work from home? Employees can request flexible work, but employers do not have to approve it if there are genuine business reasons not to. Does the request have to be in writing? It is best practice for both the request and response to be documented in writing. How long does an employer have to respond? Employers must respond within one month. Can flexible work be temporary? Absolutely. Many employers use trial periods or temporary arrangements successfully. Can employers monitor remote workers? Yes, within reason. Employers can manage performance, communication, and productivity expectations, provided monitoring is lawful and transparent. What if working from home stops working? Employers should review the arrangement and discuss concerns early. This is why written agreements and review periods are important. Do employers have to provide equipment? Not always. This should be agreed between both parties and documented clearly. Flexible working can be a great tool for attracting and retaining good staff. It can improve morale, productivity, and work-life balance when managed well. But flexibility without structure creates problems. As an employer, your job is to balance legal obligations, business needs, team fairness, and employee wellbeing. The safest approach is to have a clear process, good documentation, consistent decision-making, and strong communication. Because when HR processes are simple and structured, your business runs smoother and you can spend less time worrying about employment issues. If your business needs help creating flexible work policies, employment agreement variations, or handling difficult employee requests, Employer Direct can help you put practical systems in place that protect both your people and your business. Contact us today for more information. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

Running a business in New Zealand is challenging without leave issues turning into disputes, payroll errors, or personal grievances. For many employers, leave management becomes one of those ‘hard basket’ tasks, until someone resigns and asks why their final pay is wrong. Or an employee gets upset because leave was declined. Or payroll discovers annual leave balances haven’t been calculated correctly for years. Suddenly, a simple admin task becomes expensive, stressful, and time-consuming. The reality is that leave management is one of the most misunderstood parts of employment law in New Zealand and even well-meaning employers can get it wrong. Here are the ten most common mistakes New Zealand employers make when it comes to employee leave, and what you can do instead. 1. Not Making The Time To Understand And Keep Up To Date On Employment Law Relating To Leave One of the biggest traps employers fall into is assuming leave decisions are simple and can be based on what feels fair or reasonable. For example: ‘We’re too busy right now, so no one can take leave,’ ‘They’ve already had time off this year,’ ‘They don’t seem genuinely sick,’ or ‘They only worked here a short time, so they shouldn’t get much annual leave.’ The problem is that employment law doesn’t operate like that and there are legal minimums and processes employers must follow. If those rules are ignored, businesses can quickly find themselves facing disputes, penalties, or damaged employee relationships. 2. Unreasonably Refusing Annual Leave Under New Zealand law, employees become entitled to four weeks of annual leave after 12 months of continuous employment. Employers can decline leave requests in some situations, particularly during genuinely busy operational periods, but the key word is reasonable. Problems arise when employers: decline every request during busy periods, play favourites, fail to communicate clearly, or simply say “no” without explanation. Employees are human beings with families, weddings, school holidays, funerals, and lives outside work. If annual leave is consistently blocked, frustration builds quickly. Businesses can lose excellent staff when employees feel they can’t take the leave they are owed. What employers could do is: Have a clear leave policy, Encourage leave planning early, Use fair systems during peak periods, Communicate openly and respectfully, and Document reasons if leave needs to be declined. Annual leave exists for rest and recovery of employees. Courts and employment authorities generally expect employers to support employees taking leave wherever reasonably possible. 3. Forcing Employees to Use Annual Leave Incorrectly Another common issue is when employers try to force employees to use annual leave during quiet business periods, when they are sick or injured, during disciplinary situations, or over Christmas shutdowns without following proper notice requirements. There are situations where employers can require leave to be taken, but strict rules apply. For example, annual closedowns must follow proper notice requirements. You cannot simply tell staff on Friday they must take annual leave from Monday. Likewise, if an employee is genuinely sick during annual leave, the leave may need to be converted to sick leave. Trying to manage costs by moving leave around incorrectly can create much larger legal and financial problems later. 4. Mishandling Sick Leave Sick leave causes stress for many employers. Business owners often feel stuck between wanting to support staff, managing productivity, and worrying about abuse of the system. But this is where many employers accidentally create risk. Common mistakes include: demanding medical certificates too aggressively, refusing legitimate sick leave, disciplining employees too quickly, or discussing medical issues inappropriately. Under New Zealand law, employees are entitled to sick leave after six months of employment if eligibility requirements are met. Employers can ask for proof of sickness in some situations, but there are rules around timing and who pays for medical certificates. One of the biggest mistakes an employer can make is letting frustration guide their actions. For example, when an employee calls in sick several Mondays in a row, the employer can become suspicious and react emotionally, sending angry texts or making accusations. Even if the employer’s concerns are understandable, poor handling can quickly escalate into bullying allegations, personal grievances, or damaged workplace culture. A better approach from the employer would be: Stay calm and professional, Follow a consistent process, Focus on facts, not assumptions, Keep communication respectful, and Seek advice early if patterns emerge. Good systems protect both employers and employees. 5. Getting Bereavement Leave Wrong Bereavement leave is one area where employers can unintentionally come across as insensitive or dismissive. Many employers still misunderstand bereavement leave entitlements in New Zealand. Some assume bereavement leave only applies to immediate family. The reality is that bereavement leave can apply more broadly depending on the employee’s relationship with the deceased, cultural responsibilities, family structures, and the circumstances involved. This is particularly important in New Zealand’s diverse workplaces, where cultural obligations around tangihanga and mourning can differ significantly. Employers who handle bereavement leave poorly often damage trust permanently. Even if operational pressures exist, empathy matters. Best practice includes responding compassionately, asking respectful questions, avoiding assumptions, and taking the time to understand cultural considerations. Employees rarely forget how their employer treated them during difficult moments. 6. Forgetting Public Holiday Rules Public holidays create confusion for many businesses, especially around ‘Mondayisation’, alternative holidays, and determining whether a day is an ‘otherwise working day.’ Payroll errors here are extremely common. Some businesses accidentally underpay public holidays, fail to provide alternative leave days, or apply blanket rules incorrectly. These mistakes often go unnoticed until an employee raises concerns, payroll audits occur, or employment disputes arise some time later. Unfortunately, historical payroll mistakes can become very expensive to correct. Employers can be left facing significant remediation costs because systems were set up incorrectly from the start. 7. Poor Leave Record Keeping If your leave records are incomplete, inaccurate, or inconsistent, you are exposing your business to risk. This is especially important because under New Zealand employment law, employers are required to maintain accurate wage, time, holiday, and leave records. Yet many businesses still rely on spreadsheets, handwritten forms, text messages, or verbal agreements. Good record keeping should include: leave balances, leave requests, approvals, public holiday calculations, sick leave records, and payroll calculations. Strong systems reduce stress and create clarity for everyone. 8. Paying Out Final Leave Incorrectly This is one of the biggest financial risk areas for employers. Final pay calculations in New Zealand can become surprisingly complicated, especially when employees work variable hours, payroll systems are outdated, commissions or bonuses are involved, or leave balances have been managed incorrectly over time. Businesses often find themselves underpaying final annual leave, miscalculating holiday pay, forgetting alternative holidays, or incorrectly calculating average weekly earnings. Many employers assume payroll software automatically gets everything right. Unfortunately, that’s not always true. If leave balances or calculations have been wrong throughout employment, the final pay process can expose years of hidden problems. And once an employee leaves, they are often far more likely to review their payslips carefully or seek external advice. Incorrect final pay can lead to: wage arrears claims, Employment Relations Authority disputes, penalties, legal costs, and reputational damage. One payroll mistake can end up costing far more than getting proper HR and payroll advice upfront. 9. Having No Leave Policy At All Many businesses operate without a clear leave policy because they think 'we’re a small team,' 'everyone just talks to each other,' or 'we’ve never had problems before.' Until they do. Without clear expectations, inconsistency creeps in. One employee gets leave approved easily. Another gets declined. One manager requires medical certificates. Another doesn’t. This inconsistency creates confusion, frustration, and risk. A good leave policy helps businesses stay compliant, create fairness, reduce disputes, and make decision-making easier. It also removes pressure from managers who otherwise have to make difficult decisions on the spot. 10. Waiting Until There’s a Problem This is probably the biggest mistake of all. Many employers only seek advice after an employee resigns angrily, a personal grievance is raised, payroll errors are discovered, or relationships have broken down. By then, the situation is usually more stressful, more expensive, and harder to fix. The best businesses are proactive, not reactive. Leave management might seem like simple administration, but it can quickly become one of the biggest risk areas in a business if handled poorly. The good news is that most leave problems are preventable with proper systems, clear policies, accurate payroll processes, and good advice. Getting leave right protects your business, supports your team, and reduces unnecessary stress. If you’re unsure whether your leave policy or employment processes are compliant, now is the time to check. Because fixing a small issue today is far easier than defending a costly employment dispute tomorrow. At Employer Direct, we help New Zealand businesses simplify HR, reduce risk, and create systems that actually work in the real world. If you have an employee disputing their leave entitlements, or want to set up systems to prevent disputes in the future, get in touch today. We can offer advice or a range of resources to help your business. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.

For many small and medium business owners, redundancy is one of the hardest employment processes they will face. You might be under financial pressure. Sales may have slowed down. You may need to restructure your business to survive. Or technology and changing customer demand may mean a role simply no longer fits your operation. But here’s the problem. In New Zealand, redundancy is not just a business decision. It is a legal process. Even when an employer has genuine commercial reasons for restructuring, the wrong process can quickly turn into a personal grievance, costly settlement, damaged reputation, and months of stress. Here are the 10 biggest pitfalls to avoid when disestablishing a role and making an employee redundant in New Zealand. 1. Deciding the Outcome Before Consultation Starts One of the biggest mistakes employers make is treating consultation as a box-ticking exercise. Under New Zealand employment law, consultation must be genuine. That means the final decision cannot already be made before employees have had a real opportunity to give feedback. Many employers accidentally undermine their own process by saying things like ‘We’ve decided to remove your role,’ ‘This is happening next week,’ or ‘Your position is redundant’ before consultation has even started. Under the Employment Relations Act 2000, employers must act in good faith. This includes being open, communicative, and genuinely considering employee feedback. If the employee can prove the decision was already made before consultation occurred, the entire process may be found unfair. The potential ramifications of this may be personal grievance claims, lost wages compensation, hurt and humiliation payments, legal costs and damage to workplace trust. The Employment Relations Authority (ERA) regularly criticises employers who appear to have “predetermined” redundancy outcomes. 2. Failing to Show a Genuine Business Reason A redundancy must relate to the role, not the person. This is where many businesses get themselves into trouble. If an employer is actually trying to remove an underperforming employee but labels it as a redundancy, the ERA may view the process as a sham redundancy. A genuine redundancy usually involves business issues such as financial pressure, restructuring, reduced workload, technology changes, business sale or closure or efficiency improvements. You need to be able to explain why the business change is necessary, why the role is no longer needed, and how the proposed structure will operate moving forward. The courts generally do not question whether your business decision is smart. However, they will examine whether it is genuine and made in good faith. The potential ramifications of getting this wrong are that the redundancy may be ruled unjustified, the employee may need to be reinstated, or there may be financial penalties and significant settlement costs. 3. Not Providing Enough Information During Consultation Employees are entitled to understand the proposal affecting their job. A common mistake is giving vague explanations like the business is restructuring, we need to cut costs, or things are tight. That is not enough. Employees should receive enough information to meaningfully respond to the proposal. This might include: Proposed new structure, Financial or operational reasons, Which roles are affected, Proposed timelines, and Selection criteria if applicable. Employers do not necessarily need to hand over highly confidential information, but they do need to provide enough detail for employees to properly participate in consultation. When employers withhold information, employees often assume the process is unfair or dishonest. Failure to do so may result in a breach of good faith obligations, unjustified dismissal claims, delays and disputes, and increased risk of mediation or ERA proceedings. 4. Rushing the Process Small business owners are often under pressure to act quickly. Unfortunately, redundancy processes that move too fast are one of the easiest ways to lose a personal grievance claim. Employees need reasonable time to read the proposal, seek advice, ask questions, and provide feedback. What is reasonable depends on the complexity of the restructure, but giving someone 24 hours to respond to losing their livelihood is rarely enough. Consultation should feel fair and measured. The faster you rush, the slower and more expensive the aftermath can become. Moving too quickly through consultation may mean that the process is ruled procedurally unfair, employees may be awarded compensation, there may be increased legal scrutiny on the business, and it may affect employee engagement and morale. 5. Forgetting About Redeployment Options Before making someone redundant, employers should consider whether there are alternative roles available within the business. This is called redeployment. Even if the role is different, lower-level, or requires some retraining, employers should still consider whether it is a reasonable option. Many employers fail to assess alternative vacancies, discuss possible redeployment with affected employees, or consider reduced hours or adjusted duties. The ERA expects employers to actively turn their minds to alternatives before terminating employment. For larger businesses or groups of companies, this obligation can become even more important. Missing redeployment opportunities may result in findings of unfair dismissal, claims that the employer acted unreasonably and increased compensation exposure. 6. Using Poor Selection Criteria Sometimes a business is reducing the number of similar roles rather than removing an entire function. For example, reducing five sales roles down to three, reducing administration staff, or merging departments. This is where selection criteria for remaining available roles become critical. Poor selection methods might include: Choosing people based on personality, Using subjective opinions, Targeting “difficult” employees, or Making decisions without evidence. Selection criteria should be objective, transparent, relevant to business needs, applied consistently and communicated effectively. Examples include skills, qualifications, performance history, experience and attendance records. Employers should also document how decisions were reached. Getting this wrong might result in allegations of discrimination, personal grievance claims from affected employees, allegations of bias or retaliation, and, ultimately, increased legal costs. 7. Ignoring Discrimination Risks Redundancy decisions can create significant legal risk if protected characteristics appear to influence outcomes. Under the Human Rights Act 1993, employers cannot discriminate based on factors such as age, gender, pregnancy, disability, race, family status or religious belief. For example, employers can run into serious problems if: A pregnant employee is selected shortly after announcing maternity leave, Older workers are targeted because they are “close to retirement,” or Parents with flexible hours are chosen first. Even if discrimination was not intentional, poor documentation and weak decision making can create the appearance of unfairness. Missteps in this process can result in Human Rights Commission complaints, personal grievances, financial penalties, and, in some cases, serious reputational damage. 8. Failing to Follow the Employment Agreement Many employers forget to check the employee’s employment agreement before starting the process, particularly if contracts are not standard across all employees. That is a major risk. Some agreements may contain specific redundancy clauses, consultation requirements, notice periods, and redundancy compensation entitlements. If your agreement promises redundancy compensation and you fail to pay it, you may breach contract obligations. If your agreement outlines a process, you must follow it. Failure to do so may result in breach of contract claims, wage arrears disputes, and penalties and compensation. This is one reason we always recommend employers review agreements carefully before beginning any restructure process. 9. Communicating Poorly With the Team Employers often focus entirely on the affected employee and forget the wider team. But redundancy processes can create fear, gossip, and uncertainty across the whole workplace. If communication is poor productivity may drop, staff morale suffers, good employees may leave, and workplace trust erodes. You do not need to share confidential information, but you should communicate clearly and professionally with remaining staff. People understand businesses sometimes need to restructure. What they struggle with is silence, confusion, and mixed messaging. Strong leadership during difficult conversations matters. At Employer Direct, we often remind clients that good HR is not just about legal compliance. It is also about protecting culture, morale, and long-term business stability. 10. Trying to DIY a High-Risk Process Many small business owners try to manage redundancies themselves to save money. We understand why. When cash flow is tight, paying for professional HR advice can feel like an extra expense. But redundancy mistakes are often far more expensive than getting advice early. The average Employment Relations Authority settlement can be substantial, especially once legal fees, management time, stress, and lost productivity are added in. New Zealand employment law is heavily process-driven. Even if your business reason is valid, a flawed process can still lead to liability. Common costs of getting it wrong include mediation costs, legal representation, settlement payments, wage reimbursement, stress and distraction, and reputation damage. Sometimes the cheapest option upfront becomes the most expensive outcome later. Making a role redundant is never easy. For many business owners, these decisions come during periods of financial pressure, uncertainty, and exhaustion. You are trying to protect the future of your business while also treating people fairly. But in New Zealand, good intentions alone are not enough. The Employment Relations Authority looks closely at whether the business reason was genuine, whether consultation was fair, and whether employees were treated reasonably and in good faith. A poorly handled redundancy can quickly become a costly and stressful dispute. The good news is that with the right advice, planning, and process, most redundancy risks can be managed properly. At Employer Direct, we help businesses navigate difficult employment situations with practical advice, clear systems, and support that keeps things simple. Our goal is to reduce stress, minimise risk, and help businesses move forward with confidence. If you are considering restructuring your business or disestablishing a role, get in touch today for a free consultation, or visit our document shop for resources designed to help you manage this process effectively. Employer-Direct.co.nz | 0800 612 355 Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.