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.