Serious Misconduct: A Guide for NZ Employers

Serious misconduct happens when an employee’s behaviour is so severe that it breaks the trust between them and their employer. It’s a serious breach of duty that often leads to instant or summary dismissal.

In simple terms, serious misconduct includes actions that make it unreasonable or unsafe for the employee to keep working. Examples might include theft, violence, or serious breaches of safety or company policy.

In New Zealand, employment law requires employers to follow a fair and reasonable disciplinary process even when serious misconduct occurs. Acting too quickly or skipping due process can expose your business to personal grievance claims or unjustified dismissal cases.

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In this guide, you’ll learn:

• What serious misconduct means in New Zealand workplaces
• Examples of serious misconduct cases
• The difference between misconduct and serious misconduct
• How to handle serious misconduct termination correctly

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What Is Serious Misconduct?

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Serious misconduct is behaviour that fundamentally breaks the trust and confidence between an employee and employer. It goes beyond poor performance or minor rule-breaking.

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In New Zealand, serious misconduct is defined by the Employment Relations Act 2000 and further supported by Employment New Zealand guidelines. Employers must show that the behaviour was deliberate or reckless and that it seriously harmed the employment relationship.

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Examples of Serious Misconduct

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Below are common examples of serious misconduct seen in New Zealand workplaces:

• Theft or fraud
• Physical assault or violence
• Harassment, bullying, or discrimination
• Serious health and safety breaches
• Damage to company property
• Being intoxicated at work
• Unauthorised use or disclosure of confidential information
• Wilful neglect of duties

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Misconduct vs Serious Misconduct

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The difference between misconduct and serious misconduct lies in severity.

• Misconduct covers less serious behaviour like lateness or minor policy breaches. Usually, a verbal or written warning is enough.
• Serious misconduct involves serious breaches such as theft, violence, or deliberate safety risks. These can justify instant dismissal if proven through a fair investigation.

When unsure, employers should always investigate first. Acting too quickly can risk claims of unjustified dismissal.

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Grounds for Instant Dismissal

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Instant or summary dismissal is only justified when serious misconduct is clearly proven and the disciplinary process was fair. Examples include:

• Physical assault or threats at work
• Fraud or theft
• Intentional data breaches
• Serious health and safety violations

If the behaviour doesn’t meet this level, consider issuing warnings instead. The question many employers ask is “How many written warnings before dismissal?” , and it depends on the situation. For general misconduct, it often takes two or three warnings. But for serious misconduct, dismissal can be immediate if fair process is followed.

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How to Do Serious Misconduct Termination in a Right Way

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When terminating for serious misconduct, fairness is everything. Employers must prove:

• The behaviour meets the definition of serious misconduct
• The disciplinary process was fair, transparent, and well-documented
• The employee had the chance to respond

Following these steps protects your business from personal grievance claims and shows compliance with New Zealand employment law.

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Key Takeaways for Employers and Employees

• Employers must always investigate allegations before taking action.
• Use a clear and detailed serious misconduct letter to outline the issue.
• Give employees a fair chance to respond before deciding on disciplinary action.
• Employees should cooperate fully during the investigation and provide honest explanations.
• Understand that serious breaches such as theft, violence, or safety violations can lead to summary dismissal.
• Keep written records of all meetings, evidence, and outcomes.
• Ensure all actions align with the employment agreement and company policy.
• Seek HR or legal advice when uncertain about next steps.
• Follow a fair and transparent process to protect both parties and maintain trust in the workplace.