What counts as serious misconduct in NZ?

In New Zealand, serious misconduct is behaviour that destroys or seriously undermines the trust and confidence between an employer and an employee. Theft, violence and serious dishonesty are common examples. But whether something is serious misconduct always depends on the facts, and you can only decide that after a fair investigation. 

What's the difference between misconduct and serious misconduct? 

Misconduct is behaviour that falls short of what's expected but doesn't, on its own, break the employment relationship. Think lateness, rudeness or a minor breach of a policy. A one-off instance usually leads to a conversation or a warning, not a dismissal. 

Serious misconduct goes to the heart of the relationship. The key question is whether the employer can still trust the employee, particularly in the job they do. It's usually deliberate, although very careless behaviour can sometimes count. Serious misconduct can justify dismissal, sometimes without notice, but only after a fair process. 

Comparison Misconduct Serious misconduct
What it is Falls short of expected standards Destroys or undermines trust and confidence
Usually Minor, often careless Deliberate, or seriously careless
Typical outcome Conversation or warning Final warning or dismissal
Process needed Fair process Fair investigation and disciplinary process

Common examples of serious misconduct 

These are the kinds of behaviour that are often treated as serious misconduct: 

  • Theft or fraud, especially by someone in a position of trust 

  • Violence, threats or assault at work 

  • Serious bullying or harassment, including sexual harassment 

  • Serious dishonesty, such as falsifying records or timesheets 

  • Being impaired by alcohol or drugs in a safety-sensitive role 

  • Serious breaches of health and safety rules that put people at risk 

  • Misusing confidential information 

None of these is automatically serious misconduct. The same act can be serious in one workplace and minor in another. For example, a security guard who commits violence raises real doubts about whether they can do their job safely. Context matters, and so does the employee's explanation. 

If it's listed in our policy, is it automatically serious misconduct? 

No. A code of conduct that lists something as serious misconduct is helpful, because it tells staff what's expected. But the label in the policy doesn't decide the outcome. The Employment Relations Authority looks at what actually happened and whether the employer acted fairly and reasonably. Behaviour that isn't in the policy can still be serious misconduct. 

Can behaviour outside work be serious misconduct? 

Yes, sometimes. Conduct outside work can be serious misconduct if it damages the trust between employer and employee, brings the employer into disrepute, or makes the person unfit to do their job. There needs to be a real link back to the employment. What someone does at the weekend usually isn't the employer's business unless it crosses one of those lines. 

Why the process matters as much as the behaviour 

This is where many employers come unstuck. Even if the behaviour is clearly serious, a dismissal can still be found unjustified if the process wasn't fair. Before deciding anything, an employer needs to: 

  1. Tell the employee exactly what's alleged 

  1. Look into it properly and gather the evidence 

  1. Give the employee a real chance to respond 

  1. Consider their explanation with an open mind 

  1. Only then decide whether serious misconduct happened, and what to do about it 

The more serious the allegation, the more important it is that the investigation is careful and unbiased. That's often when employers bring in an independent investigator. As a former CIB detective, I've spent most of my career gathering evidence that has to stand up to scrutiny. I run every workplace investigation to a standard that would hold up in the Employment Court, if a matter ever goes that far. 

If you're dealing with a serious allegation, see how Karapiti handles misconduct and disciplinary investigations. 

Frequently asked questions 

  • Yes, if it's serious misconduct and the employer has followed a fair process. A minor first offence usually can't justify dismissal.

  • Dismissal without notice. It's only available for serious misconduct, and only after a fair investigation and disciplinary process.

  • In practice, yes. "Gross misconduct" is the term more often used overseas. New Zealand employment agreements and guidance usually say "serious misconduct".

Karapiti provides independent workplace investigations for New Zealand employers. Talk to Steve on 021 121 9831. 

Steve Lockett