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Procedural Failures

What It Is

Procedural failure means your employer didn’t follow a fair and reasonable process when making a decision that affected you — such as in a disciplinary action, redundancy, suspension, or dismissal.
Even when the employer has a valid concern, a flawed procedure can still render their actions unjustified under ERA 2000 s 103A.

Examples include:

  • Not providing you with all relevant evidence before a disciplinary meeting.
  • Failing to allow you to respond properly to allegations.
  • Predetermining outcomes before hearing your side.
  • Failing to notify you of your right to representation.

Your Rights and the Law

  • ERA 2000 s 103(1)(a)–(b) — You may raise a personal grievance for unjustified dismissal or disadvantage if you were dismissed (including constructive dismissal).
  • ERA 2000 s 103A — The “fair and reasonable employer” test requires both substantive and procedural fairness.
  • ERA 2000 s 4 — Employers must act in good faith — openly, honestly, and without misleading conduct.
  • A Ltd v H [2016] NZCA 419 — The Court of Appeal confirmed that fairness must be judged holistically, not on “checklist perfection.”
  • GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101 — Reinforced the need for natural justice and proportionality in disciplinary processes.

Process (How a Case Generally Proceeds)

  1. Identify the Defect — Was there lack of notice, failure to disclose evidence, or no chance to comment?
  2. Raise a Personal Grievance (PG) — Within 90 days (ERA s 114).
  1. Mediation – The Ministry of Business, Innovation & Employment (MBIE) provides free mediation to seek early resolution. The process is voluntary and both parties must agree to attend. Most cases reach resolution at Mediation.
  2. Employment Relations Authority Investigation – If unresolved, a Statement of Problem is filed; the Authority investigates and issues a written determination.
  3. Employment Court Appeal – Possible for errors of law or procedure.

Potential Outcomes / Remedies

  • Compensation for hurt, humiliation and injury to feelings (ERA s123).
  • Lost wages if dismissal or suspension resulted (ERA s 128).
  • Reinstatement (ERA s 125).
  • Declarations and penalties for bad-faith conduct (ERA s 4A).
  • Training or procedural orders requiring employers to correct processes
  • Costs

Take Action Today

If you believe your employer’s process was unfair — whether in a disciplinary, redundancy, or performance matter — you may have a valid claim under ERA 2000 s 103A. Get in touch with us to arrange a no-obligation consultation about your situation. We will review your documents, assess procedural flaws, and help you pursue the remedies you’re entitled to.