Before You Fire Someone: The Five Documents You Need

Firing someone is not just a decision. It is a process.

That is where many small and medium-sized employers get into trouble. They focus on whether the employee “deserved it”, while ignoring whether the business can prove that it acted fairly, reasonably, and in good faith.

In New Zealand employment law, the question is not simply: Was the employer annoyed?

It is not even simply: Did the employee do something wrong?

The real question is closer to this:

Can the employer show that it had a proper reason, followed a fair process, gave the employee a real chance to respond, considered that response properly, and reached a decision that a fair and reasonable employer could reach?

If the answer is no, the dismissal may become expensive, even where the employee behaved badly.

Before dismissing an employee, an employer should usually have these five documents in order.

1. The Employment Agreement

Start with the employment agreement.

That sounds obvious, but plenty of employers charge into disciplinary action without checking the document that governs the relationship.

The employment agreement may contain important terms about:

• duties and responsibilities;

• hours of work;

• trial or probationary periods;

• notice periods;

• disciplinary procedures;

• abandonment of employment;

• serious misconduct;

• restraints of trade;

• confidentiality;

• policies incorporated into the agreement.

  

  
  

If the agreement says a particular process must be followed, follow it. If the agreement refers to a disciplinary policy, read the policy before acting. If the agreement is outdated, missing, or badly drafted, that is not the employee’s problem. It is the employer’s problem.

A dismissal process should not begin with vibes, irritation, or a manager saying, “Surely we can just get rid of them.”

It should begin with the contract.

2. The Relevant Policy or Rule

The next document is the rule the employee allegedly breached.

This may be a workplace policy, code of conduct, health and safety rule, social media policy, vehicle policy, harassment policy, performance standard, or written instruction.

The employer needs to be able to answer four basic questions:

1. What rule was breached?

2. Was the employee aware of the rule?

3. Was the rule lawful and reasonable?

4. Has the rule been applied consistently?

This last point matters. If one employee is dismissed for conduct that others routinely get away with, the employer may have a problem. Selective enforcement can look less like discipline and more like targeting.

Policies should also be clear. A vague rule such as “be professional” may help set workplace culture, but it may not be enough on its own to justify dismissal. The more serious the outcome, the more important it is that the employee knew what was expected.

Employers do not need a 400-page policy manual written by someone who thinks plain English is a personal enemy. But they do need enough written structure to show that the standard existed before the problem arose.

3. The Evidence File

This is where employers often do the most damage to themselves.

They know what happened. Everyone knows what happened. The manager is furious. The employee has “always been a problem”. The team is sick of it.

None of that is evidence.

Before dismissal is seriously considered, the employer should gather the actual evidence. Depending on the issue, that may include:

• emails;

• text messages;

  

• rosters;

• timesheets;

• CCTV records;

• customer complaints;

• witness statements;

• performance data;

• incident reports;

• previous warnings;

• meeting notes;

• health and safety records.

  

The evidence file should be organised, dated, and specific.

A complaint saying “James is rude” is weak.

A complaint saying “On 4 May, James told a customer to ‘go somewhere else if you don’t like it’, in front of two staff members, after the customer asked for a refund” is much stronger.

The employee must also be given enough information to understand the allegation and respond to it. Ambush is not a disciplinary process. It is a litigation starter kit.

4. The Invitation Letter

The invitation letter is one of the most important documents in the whole process.

This letter should tell the employee:

• that there will be a disciplinary meeting;

• what the allegations are;

• what evidence the employer is relying on;

• that dismissal is a possible outcome, if it genuinely is;

• that the employee may bring a support person or representative;

• when and where the meeting will take place;

  

• how the employee can provide a response.

  
  

The employer should not use the invitation letter to announce a conclusion. If the letter sounds like the decision has already been made, the process may look predetermined.

There is a major difference between:

“We are investigating an allegation that you removed company property without permission.”

and:

“You stole company property and we are meeting to discuss your dismissal.”

The first leaves room for explanation. The second sounds like the employer has already decided the employee is guilty.

That difference can matter.

The invitation letter should also give the employee reasonable time to prepare. What is reasonable will depend on the seriousness and complexity of the issue. A simple lateness issue may not require much time. A serious misconduct allegation involving several documents or witnesses may require more.

A rushed process often looks like a fake process.

5. The Decision Letter

After the meeting, the employer must consider the employee’s response before deciding what to do.

That means actually considering it. Not pretending to listen while mentally packing the employee’s desk into a cardboard box.

The decision letter should explain:

• what allegations were considered;

• what evidence was relied on;

• what response the employee gave;

• why the employer accepted or rejected that response;

• what outcome has been decided;

• why that outcome is considered appropriate;

• when the outcome takes effect;

• any notice, final pay, or practical arrangements;

• any right of review or further process, if applicable.

If the decision is dismissal, the letter should make the reasoning clear.

This does not mean writing a novel. It means showing a logical path from allegation, to evidence, to response, to conclusion, to outcome.

The decision letter is often the document that later gets read by a mediator, advocate, lawyer, or Authority member. It should not sound angry, smug, vague, or theatrical.

It should sound boringly competent.

That is the goal.

The Hidden Sixth Document: Meeting Notes

Although this article is about five documents, there is one more practical safeguard: keep proper notes.

Employers should keep notes of investigation meetings, disciplinary meetings, adjournments, deliberations, and decision-making discussions.

Those notes should record what was said, not what the employer later wishes had been said.

Bad notes can hurt. No notes can hurt more.

A manager who says, “I definitely considered the employee’s explanation,” is in a weaker position if there is no written record showing that they did.

The Real Point

The purpose of these documents is not bureaucracy for its own sake.

The purpose is protection.

Good documents protect the employer from bad claims. They also protect employees from unfair treatment. A proper process forces everyone to slow down, identify the real issue, test the evidence, and make a decision that can survive scrutiny.

Most dismissal problems do not happen because employers are evil masterminds. They happen because someone gets frustrated, skips steps, assumes the conclusion is obvious, and treats process as a box-ticking exercise.

That is a mistake.

If the employee is genuinely unsuitable, dishonest, unsafe, or incapable of doing the job, a fair process helps the employer prove it.

If the evidence is weak, confused, inconsistent, or contaminated by personal conflict, a fair process helps the employer discover that before making an expensive decision.

Either way, the process is not the enemy.

The process is the seatbelt.

You may never need it. But if things go wrong, you will be very glad it was there.