Procedural fairness is a key concept that can't be ignored, and all employers MUST be familiar with it, especially when dealing with underperformance, misconduct, or employee disputes.
In this article I'll define procedural fairness and share 3 real-life examples of how it has been mishandled.
What is Procedural Fairness?
When it comes to unfair dismissals, procedural fairness is a key factor the Fair Work Commission considers when determining if a dismissal is harsh, unjust, or unreasonable. It involves ensuring the dismissal process is fair and transparent. Some examples of procedural fairness include:
Whether the employer followed their own dismissal procedures.
Whether the employee was given a chance to present their side of the story.
Whether the employee was allowed to seek advice or have a support person present during meetings.
By adhering to these principles, employers can significantly reduce the risk of disputes over dismissal decisions.
Case 1: The $1.5 Million Summary Dismissal Case
A former manager was awarded over $1.5 million in compensation after his employer mishandled a summary dismissal. He was accused of misconduct during a bushfire recovery project but wasn’t given a fair chance to respond. The Court found the dismissal process lacked procedural fairness—there was no evidence of serious misconduct, and the employee wasn’t given a "proper" hearing.
Takeaway from Case 1: Conducting a comprehensive investigation and providing the employee with a fair chance to respond are essential, even in cases of alleged misconduct.
Failure to follow this procedure resulted in significant financial repercussions ($1.5 million...) for the company.
Case 2: The Explicit Images Dismissal Case
The Fair Work Commission overturned a dismissal, pointing out that the employer’s investigation was flawed due to a lack of procedural fairness.
In this case, a truck operator was accused by a female colleague of inappropriate behaviour, including sharing explicit images during a bus ride.
Although the allegations were serious, the Fair Work Commission found the employer’s process deeply lacking in fairness.
Key failures included not giving the accused employee sufficient opportunity to present his version of events and disregarding witness statements that supported his defence. The Fair Work Commission also found that the investigation process was biased.
Take Away from Case 2: Procedural fairness requires that accused employees be given a chance to fully explain their side of the story, have advance notice of meetings, and bring a support person if needed.
Investigations must be impartial and thorough, with all evidence carefully reviewed, including electronic records, witness accounts, and swipe card data.
The case also reinforces the need for clear, compliant policies and unbiased investigations.
Case 3: The Working From Home Dismissal Case
In this case, the employee, an accounts assistant, had been working remotely since 2013, due to her family’s needs and her decision to homeschool her children. While there was no formal written agreement confirming this arrangement, she provided ample evidence that she had been working from home for over a decade. However, in 2023, her employer informed her that her role would be better suited to the office and proposed reducing her hours and changing her duties, leading to financial strain for her family. When she declined these changes, she was dismissed for "performance issues."
The Fair Work Commission found no valid reason for her dismissal, highlighting that the employer failed to demonstrate any performance concerns related to her working from home. Additionally, the employer's lack of HR support and failure to follow proper procedures played a significant role in the unfair dismissal ruling.
Take Away from Case 3: This case highlights the importance of handling return-to-work mandates with care. Employers must avoid linking performance issues directly to remote work, as this could lead to claims of discrimination, especially if employees have caregiving responsibilities or other protected attributes.
Instead, performance concerns should be addressed based on measurable outputs, such as (in this case) processing invoices, rather than focusing on where the work is being done.
The case also reinforces the need to follow appropriate processes when requiring employees to return to the office. This includes providing sufficient notice, consulting with employees, and giving them the chance to explain their situation.
If employees request flexible work arrangements, especially those protected by law (for example caregivers, employees over 55, or those with disabilities), employers must take these requests seriously. Ignoring or dismissing these without sound business reasons can lead to further disputes and claims.
Procedural fairness is vital when handling dismissals or disputes. From investigating thoroughly to ensuring employees have a chance to present their side, fairness can protect employers from legal challenges and maintain workplace harmony. By following these practices, businesses can avoid costly claims and uphold a reputation for fairness and integrity.
If you have concerns about this topic, or need help with difficult conversations, send me an email at sandra@hrconsultingtas.com.au.
Â
Subscribe to my free newsletter for valuable HR and Safety insights every two weeks.
Comments