Full source list for When something goes wrong with an employee, what does fair process actually look like?
Six numbered references for /wayfinder/refs/performance-management-procedural-backbone:
1. Section 103A test of justification: section 103A(2) of the Employment Relations Act 2000 establishes that the question of whether a dismissal or action is justifiable is determined on an objective basis by applying the test — whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time. Section 103A(3) requires the Authority or Court to consider four procedural factors: sufficient investigation, raising concerns with the employee, reasonable opportunity to respond, and genuine consideration of the employee's explanation.
2. Section 103A amendments effective 21 February 2026: section 103A(3)(e), inserted by section 19(1) of the Employment Relations Amendment Act 2026, adds a factor to the justification test — whether the employer was obstructed by the employee from taking an action specified in section 103A(3)(a)–(d). Section 103A(5), replaced by section 19(2), provides that a dismissal must not be held unjustifiable solely because of process defects that did not result in the employee being treated unfairly (the earlier "minor" qualifier was removed). Contributory conduct is a separate, remedies-stage matter, dealt with by sections 123B, 123C and 124 (inserted/amended by section 7 of the same Act), not by the section 103A justification test — see the personal grievance reforms entry for the remedies-side detail.
3. Section 4 good faith: section 4 of the Employment Relations Act 2000 imposes a duty on parties to an employment relationship to deal with each other in good faith. The duty requires the parties to be active and constructive, responsive and communicative, and not to mislead or deceive each other. The duty applies throughout the employment relationship, including in disciplinary and performance processes.
4. Leading procedural fairness case law: Food Processing Etc IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582 sets the minimum natural justice requirements: notice of allegation with specifics and consequences, real (not nominal) opportunity to refute or explain, unbiased consideration. W&H Newspapers Ltd v Oram [2001] 3 NZLR 29 (CA) confirms that the touchstone is full and fair investigation in the particular circumstances. BP Oil NZ Ltd v NDU (Court of Appeal) establishes that minor procedural inadequacies should not render disciplinary action unjustified — the question is what a fair and reasonable employer could do in the circumstances, not microscopic scrutiny.
5. Procedural fairness in practice — A Limited v H (Court of Appeal): a leading recent case on how the s 103A test applies to investigations. The Court of Appeal upheld an employer's investigation as procedurally fair where the Employment Court had earlier found it inadequate, illustrating the range-of-reasonable-responses element of the s 103A(2) "could" test.
6. Proportionality of process: Coutts Cars v Baguley and the line of cases following emphasise that the size and resources of the employer are relevant to what fair process requires. A small employer is not held to the same investigation standard as a large organisation with HR resources, but is still required to meet the s 103A(3) procedural factors proportionately. The s 103A(3)(a) "having regard to the resources available" provision codifies this.