Tackling linguistic limitations in formal workplace processes
A recent Fair Work Commission decision – Peng Zheng v Citic Pacific Mining Management Pty Ltd [2025] FWC 1471 (Zheng’s case) – has brought timely attention to a critical aspect of formal workplace processes: the need to ensure procedural fairness when dealing with non-English speaking employees.
The case centres around an unfair dismissal claim brought by terminated employee Mr Zheng (Zheng), a Mandarin-speaking worker, who claimed that his ability to fairly participate in a workplace investigation was compromised due to limited English proficiency.
The FWC’s decision reminds employers about the importance of inclusive linguistic practices in formal workplace processes – whether that be performance conversations, workplace investigations or disciplinary processes.
Key Learnings
Correlation Between Fluency and Fairness
It’s well understood that for many non-native English speakers, communicating in English can sometimes involve challenges beyond vocabulary – including tone, nuance, and implied meaning.
In Zheng’s case, Commissioner Lim found that while Zheng was not “highly fluent” in English, he did have a “functional grasp” of the language, including being able to answer questions without an interpreter or support person. Commissioner Lim reasoned that because of this, and given Zheng did not lead evidence that he lacked a proper understanding of the investigation process, Zheng’s language proficiency was not disadvantageous, and he had a fair opportunity to respond to the allegations.
Given in this case higher levels of language proficiency called for lesser supports to meet the ‘procedural fairness’ test, it is reasonable to assume that in the case of a non-native speaker with low English proficiency (i.e. cannot clearly communicate without interpreter and/or translation assistance) greater support measures would be required to ensure the person was afforded procedural fairness.
💡Practical Tip 1:
Apparent fluency in spoken and/or written English is a risky assumption. Where an employee is a non-native English speaker, it is not enough to simply provide translated documents to overcome language barriers. Procedural fairness dictates that employers take reasonable steps to confirm an employee’s comprehension throughout a workplace process. Supports such as interpreters or translators should be offered from the beginning, not in response to communication issues.
If an employee declines to receive the linguistic support or assistance required to ensure a fair process (e.g. if they say they do not need or want an interpreter or translator), you can:
- frame it as you needing the support, rather than them, to ensure you fully understand what they have to say as well as the cultural context (if relevant)
- get ahead of their response and rather than offering linguistic supports, organically build them into your process from the outset.
If you take either of these approaches, ensure you still allow the employee to bring along their own support person.
Unconscious Bias and Assessment of Credibility
Due to differences in verbal and non-verbal communication, including accents, confrontation styles and body language, it generally takes native English speakers more ‘brain power’ to understand non-native English speakers. According to linguistic studies, due to cognitive biases, it is common for native English speakers to assume that non-native English speakers are less competent, less intelligent and less truthful compared to native speakers.[1]
In Zheng’s case, evasiveness in response to questioning and the downplaying of his actions in combination with contradictory third party evidence led Commissioner Lim to find that Zheng was not entirely credible. In other words, there was independent evidence available to support Commissioner Lim’s adverse credibility finding.
In other cases, pauses and hesitations may signal linguistic limitations or differing cultural norms as opposed to intentional evasiveness or a lack of credibility. For this reason, in a formal workplace process, it is important to refrain from assessing an employee’s credibility based on how confidently or fluently they speak English.
💡Practical Tip 2:
Be alive to cultural nuances, separate language limitations from dishonesty or evasiveness, and avoid unconscious biases.
Appropriately Documenting Linguistic Limitations
Best practice dictates that if an employee struggles with expression or requires linguistic assistance, an employer should document this clearly to show that they took reasonable steps to overcome this limitation and applied appropriate consideration to this in carrying out a formal workplace process. In a workplace investigation, this will often take the form of a neutrally worded observation within the report.
For example, in Zheng’s case, Commissioner Lim put this as follows: “In assessing Mr Zheng’s evidence, I have taken into account that English is not his native language, and his evidence was almost entirely given through a Commission-appointed interpreter. Mr Zheng is a Chinese national who does not speak English natively”. This sentence accurately captures the factual circumstances which give rise to the underlying linguistic limitation.
💡Practical Tip 3:
Linguistic limitations or observations should (where relevant and material to the process) be noted in a factual manner in any report produced as part of a formal workplace process. Remember to not only record what steps you took, but also when and why you took them, particularly noting any relevance to procedural fairness.
The FWC’s message in Zheng’s case is unambiguous: fairness cannot exist without understanding. As workplaces become increasingly diverse, employers must ensure that employees who participate in formal workplace processes are given an opportunity to both have a voice and in turn be understood.
Connect with us
For support with your formal workplace processes, whether performance conversations, workplace investigations or disciplinary processes, reach out to our team at hello@mapien.com.au and one of our workplace strategists will be in touch within 24 hours.
[1] Speak like a Native English Speaker or Be Judged: A Scoping Review – PMC (Tan KH, Jospa MEAW, Mohd-Said NE, Awang MM. Speak like a Native English Speaker or Be Judged: A Scoping Review. Int J Environ Res Public Health. 2021 Dec 3).