There is no all encompassing requirement for procedural fairness (sometimes called “natural justice”) in employment law. Specific obligations can exist in particular circumstances and indirect obligations in others. In many cases procedural fairness is more a matter of good practice rather than legal obligation. And the absence of procedural fairness is not always a killer blow to an employer if the action taken is otherwise fair. However, it is important for employers to provide employees with procedural fairness, particularly in deciding whether to terminate employment, because:
1. it’s the right thing to do, reflects management best practice and helps foster a positive workplace culture;
2. it makes for better decisions;
3. it helps in avoiding a perception of bias or unfairness in decision making;
4. it is a key element in defending a statutory unfair dismissal claim;
5. it often plays a significant part in an employer demonstrating that a termination did not occur for a prohibited reason such as unlawful discrimination or the exercise of a workplace right.
Procedural fairness means being given a fair and reasonable opportunity to be heard before a decision is made. The basics of procedural fairness involve:
1. allegations or issues being put to an employee in sufficient detail;
2. the employee being allowed to respond appropriately; and
3. any response being taken into account before a decision is made about termination.
Procedural fairness is most relevant to unfair dismissal applications (usually in the FWC). Unfair dismissal is a statutory remedy and the Fair Work Act requires that, for most dismissals, the FWC must take into account procedural fairness issues including:
1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct;
2. whether the person was notified of that reason;
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
5. if the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal.
There is no strict rule requiring procedural fairness in a workplace investigation or disciplinary action but, when considering an unfair dismissal application, the FWC is likely to give little weight to an investigation or disciplinary decision that does not provide procedural fairness. There is no strict formula about the amount of procedural fairness required in each case although the more serious the allegation, the greater the level of procedural fairness that should be provided. This does not mean that full witness statements need to be provided in all instances but the more detail that can be provided to the employee of the allegations and supporting facts, the better.
What about other matters? Procedural fairness is indirectly important in a claim of breach of general protections rights or unlawful dismissal. It is necessary for an employer to disprove the alleged unlawful reason for their action and this will be made easier if the employer can show that procedural fairness has been provided in reaching a decision to take action. A lack of procedural fairness may also be relevant to non termination disciplinary action as well as workplace bullying and workplace disputes generally. It is wise to check employment agreements, applicable enterprise agreements or industrial awards and policies and procedures for procedural fairness requirements as these may impose additional obligations.
What should an employee do if they feel they are not getting procedural fairness? The starting point is to ask for it. An employee is entitled to ask for clarification of allegations, the evidence being relied on by the employer and a reasonable opportunity to respond in writing and/or verbally. If this is not provided, an employee may make an internal complaint or potentially use a dispute mechanism in an employment contract, policy or enterprise agreement. If all else fails, then any response should note the lack of procedural fairness. There is no “one size fits all” model but employers disregard or pay lip service to procedural fairness at their peril.
These are of course general comments only. Please contact us if you would like any further information or help.
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