Be careful mixing the employment process cocktail

Published 9 November 2026 | 3 min read

A recent Stuff article about a former CEO being awarded $186,000 following an Employment Relations Authority case caught my attention.

Not so much because of the size of the award, but because there is a useful lesson in the case for employers.

Get the process right, and be very careful about mixing your employment process cocktails.

In this case, issues around restructuring and alleged misconduct became intertwined.

A restructure and a disciplinary process are two very different things.

A genuine restructure is about the position and the needs of the business. It should not be about the individual occupying the position. There needs to be a genuine business rationale, proper consultation, relevant information provided to the employee and a real opportunity for them to comment on the proposal and suggest alternatives before a decision is made.

Misconduct is different. It is about the conduct of the individual. It requires the concerns or allegations to be clearly put to the employee, appropriate investigation, an opportunity for the employee to respond, and genuine consideration of that response before reaching conclusions or considering disciplinary action.

Can an employer have legitimate restructuring and conduct concerns about the same employee at the same time? Potentially, yes.

But that is where employers need to be particularly careful.

Running the two processes together, or moving from one justification to another, can create the impression that the employer has already decided it wants the employee gone and is simply looking for the mechanism to achieve that outcome.

That can undermine what might otherwise have been a legitimate process.

One of the recurring mistakes we see is employers starting with the outcome they want rather than the issue they actually need to address.

“We need to get rid of this person” is not an employment process.

The starting point should instead be: What is actually happening here?

Is there genuinely no longer a need for the position? That may be a restructure.

Has the employee potentially breached a policy or employment obligation? That may be misconduct.

Are they simply not performing to the required standard? That may be a performance issue.

Each has a different pathway.

There will always be situations where things overlap, particularly in smaller businesses where commercial, performance and relationship issues can become tangled together. The answer isn’t necessarily to ignore one issue while dealing with another.

It is to slow the process down enough to identify exactly what you are dealing with and make sure the process matches the problem.

Because once you start mixing restructure, performance and misconduct into the same cocktail, it can become very difficult to demonstrate that each issue was considered fairly and independently.

And, as this case demonstrates, getting that wrong can become very expensive.

My advice to employers: diagnose first, process second, outcome last.

Not sure which process fits your situation? Talk to our team before you start.

Reference - Stuff, “Former CEO awarded $186k after boss made baseless misconduct allegations”, 26 August 2026

Steve Kennedy,
Managing Director
EQ Consultants | HR Today