Due Process for Dismissal

In this newsletter I highlight the need for Employers to follow due process when dismissing employees.

I often get asked by Employers, if an employee has committed serious performance or conduct breaches can the employer simply dismiss?

For example, two employees having a physical fight during work time.

While the action may appear to justify summary dismissal, the employer must still run a formal investigation to put the concerns to the employees and seek their comments or explanations before reaching any decisions.

Summary dismissal does not mean immediate dismissal with no process; it simply means dismissal without notice.

In a recent case “Patury v Watson Builders Ltd [2025]” the Employment Relations Authority (the Authority) considered whether Watson Builders’ actions, and the process it followed, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred.

The Authority acknowledged that performance issues can be serious and, in some cases, may justify disciplinary action up to dismissal. To justify a dismissal without notice, an employer must show that the employee’s conduct was so serious that it destroyed the necessary trust and confidence in the employment relationship.

Whilst there was no dispute that Mr Patury had made several mistakes, most were relatively minor, and Watson Builders had not put in place any formal performance management or provided support aimed at helping him avoid repeating those errors. Thus, due process was not followed.

The Authority ordered Watson Builders to pay Mr Patury $18,304, representing three months’ lost wages and $7,500 compensation awarded for hurt and humiliation.

If you have any serious employee performance or conduct issues, make sure you follow due process before reaching any decision to dismiss. If you would like assistance with understanding the key steps required, feel free to contact me for more information.