SAVE THE DATE - REEFWA IR CONFERENCE 2024 - 11 October 2024

Procedural Fairness

The concept of procedural fairness is the concern of providing fair and appropriate decision-making process in the workplace, with focus on the steps taken by the decision maker, rather than the decision itself. The application of a procedurally fair process is considered when commencing disciplinary action, investigating, or terminating an employee to establish if the decision was harsh, unreasonable or unjust. Following the procedural fairness protects both the employer and employee, as the Fair Work Commission (FWC) considers if the decision-making process was procedural fair when assessing unfair dismissal applications. In following the concept of procedural fairness employers reduce the risk of a successful unfair dismissal claim.

Section 387 of the Fair Work Act 2009 (Cth) sets out a non-exhaustive criterion that the Fair Work Commission must consider when determining if a dismissal was unfair. Best practice to ensure businesses follow the concepts of procedural fairness are listed below, this list is non-exhaustive:

  • Document All evidence and steps taken investigations, such as examples of misconduct, underperformance, or disciplinary actions.
    • Evidence can also consist of witness statements or camera footage.
  • Providing verbal and written warnings.
    • It is best practice to document the date, time and content of any verbal warnings.
  • Employers should inform the employee of the alleged misconduct/underperformance through a statement of allegations. A statement of allegations should be detailed, including the date, time, and alleged breach of policy/contractual requirements.
    • A statement of allegations should invite the employee to respond to the allegations
    • The employee should be provided with a minimum of 24 hours notice to attend the meeting
    • The employee should not unreasonably be denied a support person, however, best practice is to offer a support person in the statement of allegations.
  • Convening the meeting to provide genuine consideration of the employee’s response and consider any mitigating circumstances.
  • Organising a second meeting to deliver the outcome to the employee
    • This outcome should be delivered in writing and a copy should be kept for the business records.

Furthermore, it is best practice, when conducting the disciplinary meeting, to ensure the employee’s privacy and confidentiality is respected. This means, arranging meetings in a location where the conversation cannot be overheard by other employees. During the meeting, present the allegations to the employee and ensure you have allowed time  for the employee to respond to the allegations. It is best practice to have the employee’s direct manager, or a relevant appropriate person and a HR representative present. Detailed minutes of the meeting should also be taken. This is useful to have as evidence, if any questions or discrepancies arise surrounding the content of the meeting. If the business has a  company policy or procedure for the disciplinary and termination process, it is imperative the policy is followed to enable consistency across the business.

Case: Tomaso Edwards Moro v Insider Au Pty Ltd [2023] FWC 3148

In the case of Tomaso Edwards Moro (Applicant) v Insider Au Pty Ltd (Respondent), the Applicant made an unfair dismissal claim after their employment was terminated over a telephone call. The dismissal took effect, and the Applicant’s access to the company’s IT systems was revoked. The reason for termination was due to the applicant working from home on mandatory in-office days, this happened on two separate occasions.

The first occasion was due to the Applicant being too unwell to attend the office in person, the Applicant notified the team leader and completed his usual work as required. On the second occasion, the Applicant decided to work from home on the mandatory in-office day as they had tradespeople attending the house. The Applicant followed the company’s accepted procedure of updating the Teams calendar to notify the relevant coworkers that he would not be attending the office.

The Respondent found this behaviour to be indicative of a diminishing commitment to the company and role. After the Applicant’s second absence on the mandatory working in office day the Respondent had a telephone discussion with the Applicant. Towards the end of the conversation the Respondent stated, to the effect of, that it was best for the Applicant and Respondent to part ways and requested the Applicant write a letter of resignation, to which, the Applicant declined to complete. Following the telephone discussion, the Applicant received email and oral advice from the Respondent’s human resource department advising them that they would receive two weeks pay in lieu of notice. This contradicted the eight weeks’ notice stated in the employment contract. The Applicants access to the company’s IT system was then removed.

The Applicant was a high-achieving employee, with no previous underperformance concerns or prior warnings for similar conduct. They had received no warnings or counselling for any of the working from home incidences. The Applicant was not advised of the reasons for dismissal, nor given any prior notice of the meeting over the phone. As a result, they were not offered a support person, were not given an opportunity to respond and no termination letter was issued.

The Commission found that the evidence to support the Applicant’s working from home days were acceptable and the absence on the mandatory in-office working days were not a valid reason for dismissal. It was clear to the Commission that procedural fairness was not followed and the dismissal was considered harsh, unjust, and unreasonable.

The company was ordered to pay compensation of 12 weeks of pay to the employee.

This decision highlights the importance of adhering to procedural fairness. The risk of a successful unfair dismissal claim can be significantly reduced if businesses satisfy the criteria listed in section 387 of the Fair Work Act 2009 (Cth).  It prescribes that businesses must identify if the alleged conduct is cause for dismissal, and if it is, that the employee is treated fairly including being given an opportunity to adequately respond to the allegations. Therefore, adhering to procedural fairness is extremely important to reduce the risk of successful unfair dismissal claims and further financial and reputational costs to the company as a result.

For further information on these amendments, call the Employee Relations Advice Centre at CCIWA on 08 9365 7660 or email advice@cciwa.com

Written By Ravini Coorey – Employee Relations Officer

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

Join REEFWA Today

Member Benefits

“REEFWA are an exceptional corporate body that provides real time advice, advocacy and detailed information on all industrial relations matters pertaining to our industry. They operate with professionalism and personal service. Beneficially for you, they have a broad range of highly experienced personnel that work in the industry and offer years of knowledge.”

Clinton Knop

Join REEFWA Today

What Is REEFWA?