When something goes wrong with an employee, what does fair process actually look like?

What to watch for

Six places the process gets shaped wrong — most of which produce the procedural failures that the Authority routinely names in unjustified dismissal findings, even after the 2026 reforms loosened the procedural-perfectionism standard.

1. Investigate before you decide. Not the other way around. The single most common procedural failure is predetermination — the employer has decided what they think happened, then runs a "process" to confirm it. The s 103A(3) test asks whether the employer sufficiently investigated before dismissing or taking action; the leading case law (Food Processing v Unilever 1990; W&H Newspapers v Oram 2001) requires the investigation to be full and fair in the circumstances.¹ For an SMB this doesn't mean a forensic accounting inquiry; it means: gather the facts before forming a view, talk to relevant people including the employee, look at the evidence with an open mind. The investigation can be proportionate to the seriousness — a complaint about being late doesn't need the same depth as a complaint about theft — but it has to actually be an investigation, not a confirmation exercise.

2. Raise the concerns in writing, with enough detail and notice. Not "we need to have a chat." Section 103A(3)(b) requires the employer to raise the concerns with the employee before dismissing or taking action. The Unilever line of cases sets the minimum: the employee must be told the specific allegation, its gravity, and the possible outcome. "We need to talk about your performance" doesn't meet this standard. The right shape is a written letter that says: here are the specific concerns (with examples and dates where relevant), here is when we'll meet to discuss them, here is what the possible outcomes are (warning, dismissal, etc), and here is your right to bring a support person or representative. Send it with enough lead time that the employee can actually prepare — typically at least 24-48 hours for a meeting on routine issues, more for serious allegations. The trap is the manager who tells the employee about the meeting an hour beforehand and treats the meeting itself as the moment to surface the issue.

3. The support person isn't optional. Make sure the offer is real. The employee has a right to bring a representative or support person to disciplinary meetings. This isn't a formality you mention; the right is real and the employee needs a genuine opportunity to exercise it. Practical implication: the meeting notice mentions the right explicitly, the meeting timing allows the employee to actually arrange someone, and if the employee asks to reschedule because their person isn't available, you reschedule unless there's a compelling reason not to. The support person can attend, take notes, ask questions, request breaks for the employee to take advice. They can't run the meeting in the employee's place but they're not a passive observer either. Where an SMB owner finds this awkward — particularly in small workplaces where everyone knows everyone — that awkwardness doesn't override the obligation; the right exists precisely because the power imbalance in employment relationships warrants it.

4. The opportunity to respond has to be genuine. Not perform-and-decide. Section 103A(3)(c) and (d) require giving the employee a reasonable opportunity to respond and genuinely considering their explanation. The implication: at the meeting, the employee gets to hear the full case, present their side, point to evidence, propose alternative explanations. The decision doesn't get made at the meeting. After the meeting, the employer takes time to reflect — typically a day or two — actually considers what the employee said, weighs it against the rest of the evidence, and reaches a decision. The procedural failure that recurs in case law is the employer who has the meeting, listens politely, and announces the decision they'd already made at the start. The 2026 reforms made this less automatically fatal — the dismissal can still stand if substantively justified — but they didn't change the obligation. And in practice, the genuine-consideration step often surfaces information that changes the outcome; skipping it both increases legal exposure and produces worse decisions.

5. Document everything. Contemporaneously, not retrospectively. Every step of the process needs a written record made at the time — the initial allegation, the investigation steps taken, the letter raising concerns, the meeting notes, the employee's response, the considerations weighed, the decision and the reasons. Two reasons: first, the Authority gives substantial weight to contemporaneous records and very little to reconstructed-after-the-fact accounts; second, the discipline of writing things down forces clarity about what's actually happening and why. The SMB trap is the verbal process — the manager has informal conversations, makes mental notes, eventually decides to dismiss, and discovers at the Authority that they can't prove any of the procedural steps were taken because nothing was written down. Email is enough; a formal HR system isn't required. What matters is the date stamp and the substance.

6. The 2026 reforms changed how the Authority weighs procedural defects. They didn't change what fair process is. Section 103A(5) as replaced by the Employment Relations Amendment Act 2026 means the Authority no longer treats procedural defects as automatically rendering an otherwise-justified dismissal unjustified — and the word "minor" was removed, so the shield now covers any defect that didn't actually result in the employee being treated unfairly, not just trivial ones.² Section 103A(3)(e), inserted at the same time, adds a different factor to the justification test itself: whether the employee obstructed you from taking a fair-process step. That's not the same thing as contributory conduct, and the distinction matters because they operate at different stages. Obstruction goes to whether the dismissal was justified at all. Contributory conduct goes to remedies once a grievance is made out, and lives in separate provisions: section 123B removes all remedies where the employee's contributing conduct amounted to serious misconduct; section 123C bars reinstatement and hurt-and-humiliation compensation for any contribution short of that; and section 124 lets the Authority cut the remaining remedies (lost wages) by up to 100%. So "the employee contributed" is a remedies argument, not a justification factor — see the personal grievance reforms entry for that side. The obstruction factor asks the narrower question: did the employee themselves frustrate the steps you were trying to take? One caution: these provisions only commenced on 21 February 2026, and there's no settled case law yet on how strictly the Authority will read "serious misconduct," what counts as a contributing "action," or how much obstruction is enough to matter. The direction of travel is clear — process missteps are less likely to sink a substantively fair dismissal, and employee conduct now carries more weight — but the edges are still being drawn. Don't treat a defensible-looking position as a settled one; if a dismissal is heading toward a grievance, this is the point to get advice rather than rely on the new provisions doing the work for you. What hasn't shifted is the floor: a substantively fair process with small gaps is in a stronger position than it was pre-reform, but that protection doesn't reach the predetermined-outcome, no-real-investigation, no-genuine-consideration patterns that recur in case law. The position is closer to BP Oil v NDU — the disciplinary process isn't to be put under a microscope, but a process that genuinely fails the s 103A(3) factors is still unjustified. See the entry on personal grievance reforms for the remedies-side detail.

A separate point on what running the process accomplishes beyond legal defensibility. The s 103A(3) factors — investigate, raise concerns, allow response, genuinely consider — aren't arbitrary procedural hoops. They're the structural shape of a decision-making process that produces correct decisions. Predetermined dismissals get the call wrong some of the time because the employer hasn't tested their assumptions against the employee's version of events. Inadequately-investigated dismissals get the call wrong because the employer didn't gather the information that would have changed their view. The procedural fairness obligation exists because the consequences for the employee are serious and the power imbalance is real, but it also exists because process-driven decisions are better decisions. An SMB owner who runs the process diligently isn't just protecting themselves from a personal grievance; they're also more likely to be reaching the right conclusion about the actual situation. The discipline pays back in both directions.

Where this entry stops

This entry covers the procedural backbone of performance management and disciplinary action — what s 103A requires, what running a fair process actually looks like step-by-step, and the recurring failure modes. It doesn't cover:

• The remedies side after a personal grievance is raised. See the entry on personal grievance reforms (February 2026) for the post-reform remedies landscape.
• Dismissal during a valid 90-day trial period — different regime; trial period dismissals are exempt from s 103A justification challenge (procedural and substantive both). See the entry on 90-day trial periods.
• Specific case-types — serious misconduct vs poor performance vs incompatibility vs medical incapacity each have nuances on top of the procedural backbone. Case-specific advice is lawyer territory.
• Redundancy procedures — different legal shape (business reason rather than employee conduct/performance), different procedural requirements (consultation, alternatives, selection criteria). Future wayfinder entry.
• Workplace investigations into bullying, harassment, or discrimination — broader scope, often involve HSWA duties alongside ERA, frequently warrant external investigators. Specialist territory.

For operational depth on running a specific process, Employment New Zealand's resolving-problems pages carry step-by-step procedural detail. For complex cases — serious allegations, multiple employees, regulatory crossover — get a lawyer involved before the process starts, not after.

Last verified 28 May 2026. Full source list: references.