Do you practice procedural fairness?

While many are aware of what constitutes poor performance or misconduct – which can ultimately lead to disciplinary action up to and including the termination of employment – the notion of ‘procedural fairness’ is not as commonly understood. This article will explain what procedural fairness is, and what it looks like in practice. Why? So that all future disciplinary proceedings in your workplace are handled fairly and legally.

What is involved?

In essence, procedural fairness is all about ensuring employees are treated fairly during any disciplinary or termination process. Specifically, this includes the following actions:

Make the employee precisely aware of the issue that has resulted in them being disciplined.

Give the employee an adequate opportunity to respond to the issue BEFORE a final decision is made (such as before termination is confirmed).

Provide warnings, particularly if the employee is being disciplined for the first time and the issue does not constitute serious misconduct (which may result in summary dismissal).

Allow the employee to have a support person present at any disciplinary meeting (especially any meeting where termination is confirmed). A support person cannot be a lawyer and should only act in a support capacity (for example, they are there to provide emotional support, take notes and request the meeting be adjourned if absolutely necessary).

What happens without procedural fairness?

Where procedural fairness is not provided, the employer leaves themselves open to greater legal risk. Specifically, in unfair dismissal matters (which are the most common end-of-employment claims), the Fair Work Commission (FWC) directly assesses two areas:

1. The level of procedural fairness provided to the applicant (also referred to as the former employee) during any disciplinary process relevant to the termination of employment

2. The termination process itself, even if there is a substantive reason for dismissal (such as the reason for the termination being valid). If the employer does not ensure procedural fairness, it is likely that the FWC would consider the termination to be unfair, and the employer would likely be required to pay compensation to the applicant.

What should you do in practice?

To use an example, say an employee has been underperforming in their role. Here are the likely steps to be aware of:

1. The first step here is to promptly organise a meeting with the employee to raise the performance concerns. The employer should give as much detail as reasonably possible. The employee should then be given the opportunity to respond to the concerns before a performance improvement plan is jointly devised and agreed to, which will hopefully facilitate improved performance.

2. If the performance issues continue, the employer should then organise a second meeting with the employee where the lack of improvement is acknowledged, and a written warning is provided. The employer should again work with the employee to develop a plan to hopefully facilitate improvement.

3. There should also be a follow-up meeting organised in around one month’s time to assess how the employee is tracking against the agreed performance improvement plan. Keep in mind, if the employee’s performance deteriorates quickly (which can happen), this meeting can be brought forward.

4. If, by the time of the follow-up meeting, the employee’s performance has not improved, that meeting should be used to provide another warning, which can possibly be a final warning depending on the severity of the performance issues. Here, the employer is making it clear that no improvement in performance may result in the termination of employment. A support person is encouraged in a meeting of this nature.

5. If the employee’s performance does not improve after the issuing of a final warning, the employer should formally allow the employee a final chance to respond before a decision regarding whether to terminate employment is made. This could either be in a meeting or in writing through a show-cause letter.

6. Depending on the employee’s response, if the employer is not satisfied and does not believe the employee is going to improve, a meeting must be organised where termination of employment is confirmed. The employee should be given the choice to have a support person in this meeting.

7. Termination must be confirmed in writing, so the best way to do this is to provide a termination letter to the employee in this meeting.