Procedural Fairness

It is important for employers to be careful when managing, disciplining and dismissing their employees. While monitoring the performance and conduct of employees is always a significant part of an employer-employee relationship, an employer should always work to ensure that an employee is accorded procedural fairness.

Harsh, unjust or unreasonable

Importantly, the issue of procedural fairness does not concern the decision itself, but how the decision is reached and the procedure used to get to that final step. This means that where an employee is dismissed, a lack of procedural fairness might lead to them succeeding in an unfair dismissal claim, even where the employer had reasonable grounds for terminating their employment. This is because a lack of procedural fairness in many cases will be found to be harsh, unjust or unreasonable in accordance with Section 385 of the Fair Work Act 2009, especially where an employee was not given an opportunity to provide a response or the reasons for termination were not adequately explained to them.

When working to ensure that employees are accorded procedural fairness, the terms and procedures which employers should be guided by may come from various sources, including:

  • the employer’s own policies in the workplace;
  • the employment contract;
  • any applicable award or enterprise agreement;
  • the Small Business Fair Dismissal Code; and
  • applicable legislation such as the Fair Work Act 2009.

However, just because an employer follows the policies they have in place does not mean that they have actually accorded their employee procedural fairness. It is important that each case be assessed on its individual circumstances and context.

According procedural fairness

Employers must be careful to ensure that they are acting reasonably and not harshly in managing their employees, and also to manage potential liability on their part. If an employer is proposing to take action to manage or discipline employees such as giving an employee a written warning, this should be done carefully as to avoid any suggestion of the employer taking adverse action or the action amounting to repudiation.

Employers should ensure that their employees are dealt with in a way that gives them a fair chance to respond to allegations made against them and assists them to understand what the misconduct or issue is with their performance. This way, employees will arguably understand in the future what is required of them.

Where an employer blindly follows through with an attempt at discipline or termination of employment after already having made up their mind about the outcome without considering the response provided by their employee, they may still open themselves up to an unfair dismissal claim. This was seen in the case of Jiminez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd [2016] FWC 5141. In this case, the court outlined that “the concept of the need to provide an opportunity to respond to potential reasons for dismissal, particularly related to serious misconduct, is fundamentally predicated upon the decision-maker approaching the issues under consideration with an open mind such that the opportunity represented some practical and realistic potential to sway the decision maker to a particular view”.

Helpful considerations

When an employer is considering what management steps to take, some helpful matters to consider include:

  • On what grounds is the employer proposing to take disciplinary action or terminate the employee’s employment? Are there any mitigating factors?
  • What evidence does the employer have? Is it reliable and sufficient, or is further investigation required?
  • What next step is the employer actually proposing to take? Is it warranted when considered in relation to the seriousness of the matter?
  • Has there been some gap in the employee’s training?
  • Does the employee have a mental health concern that might be exacerbated by an investigation or particular management action?
  • Does the employee need support?
  • What are the employer’s expectations, and are they reasonable?

Employers should also note the distinction between an employee’s performance and their conduct when determining what course of action to take.

It is important that employees are always fully informed of any proposed action. This is to give the employee a reasonable time to prepare a response and ensure that they are given sufficient information about any relevant allegations and action the employer is contemplating. The matter of who is to be involved in the communication or meeting should also be carefully considered, especially if the employee has raised concerns regarding the interactions or relationship with a particular party, or if the employee is at some sort of disadvantage, such as language or intellectual disability. Employers should also ensure that they keep a comprehensive record of the matter and relevant communication.

Negotiating employer-employee relations can be complex. If you require advice or further information, please do not hesitate to contact the friendly team at Miller Sockhill Lawyers.