The Objective Test For Disciplinary Action Gets Another Outing

One Chief Judge, three New Zealand Employment Court judges, one QC and five lawyers recently turned their collective minds to the question of whether there are any subjective decisions left for an employer to make in justifying a disciplinary action under section 103A of the Employment Relations Act 2000 (the Act).

The focus of the section 103A test

Readers may recall that the focus of the test in section 103A of the Act was a move away from the old broader test of 'what the employer could have done (within a range of reasonable responses)' to 'what a reasonable employer would have done in all the circumstances at the time of the dismissal.'

In short the subjective elements of a justified disciplinary action were removed and replaced with purely objective ones. Basically, section 103A requires that the substantive justification for any disciplinary action be determined from a neutral point of view rather than the particular employer's point of view.