In New Zealand employment law, there is a clear distinction between disciplinary and performance issues, both in terms of their nature and the process required to address them.
Disciplinary v Performance
Disciplinary issues typically involve misconduct or breaches of workplace rules/policies, such as dishonesty, harassment, or actions that undermine trust and confidence in the employment relationship. These are often seen as behavioral problems and may include serious misconduct, which can justify immediate dismissal if it significantly affects the employment relationship.
Performance issues relate to an employee’s ability to meet the required standards of their role. These are not typically seen as behavioral problems but rather as an inability to carry out specific skills or a lack of knowledge. Addressing performance issues requires a structured approach, including identifying the problem, offering support such as training or mentoring, and setting measurable targets for improvement. Employees must then be given a reasonable opportunity to improve, and dismissal for poor performance is generally only justifiable if these steps have been followed. The process must also consider whether the employer contributed to the performance issues, for example, by failing to provide adequate training or supervision.
Risks for Employers
There is a risk for employers who fail to maintain the distinction between these two issues.
The distinction between disciplinary and performance issues is important because conflating the two can lead to unjustifiable actions by the employer, giving rise to a personal grievance claim from the affected employee. For instance, treating a performance issue as misconduct without following the appropriate performance management process could result in a finding of unjustified dismissal if the employer relied on the performance concern to dismiss the employee. Similarly, procedural fairness is essential in both contexts, but the specific steps required differ depending on whether the issue is disciplinary or performance related.
The performance management process requires the employer to consult with the employee at every stage, from raising the issues early (and perhaps informally) to setting the initial performance plan and objectives to discussing potential outcomes, which may include warnings, disciplinary action, and, as a last resort, dismissal. It is important for employers to know that the performance process is not a route to dismissal, but to help an employee get up to standard. If, after a reasonable period the employee’s performance issues remain, dismissal might be an outcome.
The disciplinary process is quite different but still requires a similarly fair process. First, it requires the employer to investigate whether the alleged misconduct or serious misconduct actually occurred. Second, if the employer considers the conduct to have occurred, the employer then decides what the outcome is. There is of course more to it than that, but that is beyond the scope of this short blog.
In summary, while disciplinary issues focus on misconduct and breaches of workplace rules, performance issues concern an employee’s ability to meet job expectations. Both require distinct processes to ensure fairness and compliance with legal obligations under New Zealand employment law.
The first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.
*The information in this blog post is general in nature and is not legal advice. If you need advice, you should contact us about your specific situation.
