In short. The right to be heard — audi alteram partem, "hear the other side" — is the first rule of fair process. Before an employer makes a decision that harms an employee, the employee must be told the case against them, shown the information behind it, given a genuine opportunity to answer, and judged by someone with an open mind. It is not a courtesy; it is codified in the test of justification in section 103A of the Employment Relations Act 2000 and the duty of good faith in section 4 of the Employment Relations Act 2000. A decision with a good reason behind it can still be unjustified if the hearing was denied.
The right to be heard is the older of the two limbs of natural justice, conventionally expressed in the Latin maxim audi alteram partem — hear the other side. It requires that a decision-maker listen before deciding, and it rests on a hard-won insight: a case that looks unanswerable on the papers can collapse the moment the other side is allowed to speak. As the Employment Relations Authority observed in Nuri v Chief Executive of Te Puni Kokiri [2011] NZERA 252, treating a charge as "open and shut" and dispensing with a hearing is a perilous path, because seemingly unanswerable allegations are often answered in full once the employee is given the chance.
This is why New Zealand law treats process as part of the merits, not a formality sitting outside them. A dismissal supported by a perfectly good substantive reason will still be held unjustified if the employee was denied a fair hearing along the way. The reason and the route to it are judged together.
The common law principle is given direct statutory form in two provisions of the Employment Relations Act 2000.
The first is the test of justification in section 103A of the Employment Relations Act 2000. It asks, objectively, whether the employer's actions and the way it acted were within the range of what a fair and reasonable employer could have done in all the circumstances. In applying that test the Authority or the Employment Court must consider, among other things, whether the employer raised its concerns with the employee, gave the employee a reasonable opportunity to respond, and genuinely considered the employee's explanation. Those are the elements of the hearing rule, written into statute.
"The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred."
The second is the duty of good faith in section 4 of the Employment Relations Act 2000, which requires the parties to be active and constructive in their relationship. Critically, section 4(1A)(c) of the Employment Relations Act 2000 requires an employer proposing a decision that will, or is likely to, have an adverse effect on the continuation of employment to give the affected employee access to the information relevant to that decision, and an opportunity to comment on it, before the decision is made. Disclosure, in this jurisdiction, is a statutory duty, not a favour.
What follows are the components the courts and the Authority have drawn out of those provisions.
A fair process begins with the employee knowing the case they have to meet. The allegation or concern must be put specifically: a vague or general accusation cannot fairly be answered, and the employee must also be told what is at stake — that the process could lead to a warning, or to dismissal — so the seriousness is understood.
The cost of getting this wrong is shown in New Zealand Express Transport Christchurch Limited v Ngaropo [1994] NZEmpC 245, where a dismissal was procedurally unfair because the employer never sufficiently identified its concerns to the employee. It was left, in the Employment Court's words, a matter of fickle chance whether the employee happened to address the very issues that were troubling the employer — issues that had never been put to him.
A response can only be meaningful if the employee can see what they are responding to. The employer must therefore disclose the material it has gathered and intends to rely on — witness statements, reports, file notes, emails, and the like — and it is not confined to the material that happens to be adverse to the employee.
This is the express requirement of section 4(1A)(c) of the Employment Relations Act 2000, reinforced by the good-faith obligation discussed in Chief Executive of Unitec Institute of Technology v Henderson [2007] NZEmpC 33, where the Employment Court underlined that the employee must have the chance to comment on the information before any decision is made. The consequence of withholding it is shown in KE v B & Z Trades Company Limited (Employment Relations Authority, 12 July 2018), where a summary dismissal was unjustified in part because the employer provided no relevant information to the employees before dismissing them, breaching both section 4 and section 103A of the Employment Relations Act 2000.
This is the heart of the hearing rule. The opportunity to respond must be real, not nominal: the employer cannot simply go through the motions, but must be genuinely prepared to listen and to engage with what the employee says. Two features give the principle teeth.
The first is the right to be heard by the decision-maker. It is a settled proposition — associated with Quinn v Bank of New Zealand [1991] 1 ERNZ 1060 — that the right to be heard means the right to be heard by the person who will actually make the decision, not merely to have one's account filtered through second-hand reports to a decision-maker who never engages with it. In that case a dismissal was unfair because the manager who made the decision had never met the employee and relied entirely on the reports of others.
The second is that the hearing must be purposeful. In McCormick v Compass Communications Ltd [2015] NZERA 391, the Authority rejected the suggestion that an employee could be taken to have been heard merely because they could have approached the decision-maker in the office. The employee had received no real and purposeful hearing, and no opportunity to put a plea in mitigation to a decision-maker approaching the question with an open mind. The employee should also be told, in advance, of their right to bring a support person or representative to any meeting.
Fairness also requires that the employee be given a reasonable time to prepare a response. What is reasonable depends on the circumstances — the complexity of the allegations, the volume of material disclosed, and the employee's need to take advice or arrange representation. An employer that rushes the process, or demands an answer on the spot, is unlikely to be acting as a fair and reasonable employer could under the test in section 103A of the Employment Relations Act 2000. Handing an employee a lengthy investigation report late on a Friday and convening the disciplinary meeting first thing on Monday is the kind of compressed timetable that will struggle to survive scrutiny.
The final element is that the employer must actually weigh the employee's response with an open mind. A hearing is meaningless if the decision has already been made; the employer must come to the meeting genuinely willing to be persuaded, and to change course if the explanation warrants it. This is where the hearing rule meets the rule against bias: a predetermined outcome is both a denial of the hearing and the mark of a closed mind.
A related unfairness is the practice of storing up complaints — gathering a collection of grievances over time and presenting them to the employee all at once. It denies the employee any chance to address concerns as they arise and corrodes the trust the relationship depends on. The Authority in Nuri v Chief Executive of Te Puni Kokiri [2011] NZERA 252 captured the human cost: those who understand human nature will not underestimate the resentment of a person who finds that a decision against them was made without their being given any opportunity to influence it.
New Zealand employment law increasingly recognises that tikanga Māori shapes what a fair process looks like, particularly where an organisation has committed itself to kaupapa Māori values. Those values sit comfortably with the Act's focus on maintaining productive, good-faith relationships, but they ask for something more than procedural box-ticking.
In Moke v Raukura Hauora o Tainui Trust [2023] NZERA 603, the employer's adherence to kaupapa Māori shaped its process: it chose kanohi ki te kanohi (face-to-face) engagement and proposed a hohou i te rongo (peacemaking) process rather than reaching immediately for suspension, and that was treated as a fair and appropriate way to handle the allegations. In GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101, the Employment Court made clear that incorporating tikanga requires substance rather than superficial gesture — mana-enhancing conduct, face-to-face discussion, processes designed for the individual, and care to do the least possible damage to the relationship.
The right to be heard is a single principle made of several connected duties: tell the employee the case, in specific terms; disclose the information behind it; give a real opportunity to answer, to the decision-maker, with time to prepare and a support person if wanted; and weigh the answer with an open mind. Each element is reflected in the test of justification in section 103A of the Employment Relations Act 2000 and the good-faith duty in section 4 of the Employment Relations Act 2000. Strip any one of them out and the hearing becomes the performance of one — and a decision reached that way, however good its underlying reason, is exposed as unjustified.
Legislation cited is linked to the current consolidated text on the New Zealand Parliamentary Counsel Office website at legislation.govt.nz. Case authorities are linked to the Working for Workers case law and reference repository at caselawandreference.workingforworkers.nz, except Quinn v Bank of New Zealand [1991] 1 ERNZ 1060, which is not held in the repository; its citation should be confirmed against the official report before it is relied upon in any filed document.
The right to a fair process is not confined to the workplace. Whenever a person or body with power over you makes a decision that affects your job, your livelihood, or your rights — an employer, the Accident Compensation Corporation (ACC), an incorporated society, a tribunal, or any public body exercising a statutory power — they must give you notice, disclose the information that counts against you, give you a genuine opportunity to respond, and decide with an open and unbiased mind. When they do not, that is the failure of natural justice this article describes, and it can be challenged.
Working for Workers stands up for people facing unfair and unreasonable process, across four areas of practice:
Fairness in Law · Accident Compensation Corporation (ACC) Law · Employment Law · Incorporated Societies Evaluation
Whatever the decision-maker, if you are up against an unfair or biased process, get in touch and we will help you work out where you stand.