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Don’t let Procedural Fairness let you down!


In deciding on any Unfair Dismissal matter, the Fair Work Commission (FWC) always tries to understand if the dismissal in question was “harsh, unjust or unreasonable”. To come to a landing on this, they will investigate the matter, giving full consideration to substantive fairness; does the punishment fit the crime, and procedural fairness; did the employer follow due processes in making their decision.

In recent times, we have seen a number of matters before the FWC, which have highlighted their focus on following due process, when dealing with disciplinary and performance related matters. While the FWC might agree that there is a valid reason for termination, the process you take in coming to that point is just as important and in some cases, may result in a finding going against the employer.

Ambushing an Employee

The first example is one of ‘ambushing’ an employee when speaking with them in relation to a disciplinary matter. SA CARE Supported Accommodation and Care Service (SA Care) employed an individual as a Care Giver who, it was alleged, had provided a level of care she was not qualified to provide, potentially constituting ‘serious misconduct’.

The employee was summonsed to a meeting with a HR representative and another Manager, where she was asked about the allegation. The meeting lasted for approximately five minutes, when the employee was asked to leave the meeting, only to be called back in and handed a letter of summary dismissal a few minutes later.

In reviewing this matter, Deputy President Anderson stated “In the circumstances of this matter, rather than being provided a real opportunity to respond Ms Okoye was provided an opportunity in name only; one in which she was being summonsed to participate in an ambush of her employment”. Deputy President Anderson highlighted that the employee was not provided the opportunity to have a support person, was not provided adequate right of reply and that it was likely that the outcome was predetermined before the meeting.

A link to the full decision can be found here

Failings in Procedural Fairness

The second example is a case, which involves the termination of a Child Care Centre Manager for general misconduct issues. While it was found that there was a valid reason to take disciplinary action, it was also found that there was not a valid reason for “immediate termination for negligence”. Had the correct procedural fairness taken place, this could have been identified and addressed prior to the termination.

From a procedural fairness perspective, Commissioner Yilmaz found that the employee was “not advised of the reason that would lead to dismissal prior to her termination of employment”. Additionally, it was found that the employer refused a reasonable request to reschedule a meeting and the employee was not warned that the misconduct could lead to termination. These were all viewed as failings in procedural fairness in the process.

A link to the full decision can be found here

Failure to meet enterprise agreement obligations

The third matter to come to light is that of BHP, when they terminated an employee for “deviant” conduct. It was found that there was a valid reason for termination in that the employees “misconduct was unacceptable”, but the employer failed to adequately follow it’s own disciplinary procedures, ultimately resulting in a failure to follow procedural fairness and ultimately led to a finding that the termination was unfair.

The employer and it’s employees have an Enterprise Agreement, which contains a disciplinary procedure called the “Fair Play Guidelines”. Part of this document reads “the parties agree to follow the process outlined in the Caval Ridge “Guideline to Fair Play”. In making her decision in this matter, Commissioner Hunt made it clear that failure to follow a binding document, such as the Fair Play Guideline, constitutes a breach of procedural fairness. She stated that the employee “had an expectation that the respondent would meet its enterprise agreement obligations to apply the Fair Play Guidelines, it failed to do so without any adequate explanation”.

A link to the full decision can be found here

What does it all mean?

All three of these recent cases highlight the importance on employers to ensure that regardless of the matter at hand and regardless of how clear the outcome may appear, the need to follow procedural fairness is paramount. A failure to do so may expose your organisation to reinstatement or the payout of costs associated with the matter, which can be avoided by taking your time and working through a correct and thorough process.

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Written by:
Jamie Paterson
With over 18 years’ experience as a human resources professional within large multi-national organisations, Jamie provides tailored employment relations solutions across geographically diverse operations focusing on all aspects of leading and managing people and practically applying his expertise in HR/IR strategy, leadership coaching, enterprise bargaining, and functional/operational auditing processes.