Putting procedural fairness in dismissals and termination: Expert advice from our senior specialist

Published on iHR Australia's website on 29 June 2023

Procedural fairness, a key element of ‘natural justice’, simply refers to acting in a fair manner during critical decision-making and providing the party an opportunity to respond to an allegation made against them. It plays an integral part in determining whether a dismissal was performed fairly and does not adversely affect an employee’s rights and interests.

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Whether an employee is demonstrating a lack of respect, shows up late to work or exhibits a pattern of cracking sexually suggestive jokes — it is important for organisations to follow a fair and proper procedure when dealing with such matters.

So, how can organisations ensure that their actions are in line with the Fair Work Act unfair dismissal provisions?

We interviewed John Boardman, Director of Workplace Relations at iHR Australia on how a dismissal might be considered unfair despite ‘a valid reason’ for doing so and the importance of procedural fairness during workplace investigations.

Interviewer: How would you define procedural fairness?

Boardman: Procedural fairness can be defined as an employee’s (in this case, also called a ‘respondent’) right to know about the allegation they face from another employee (referred to as the complainant in this context). This should be provided to them in writing. It is also important to have somebody impartial listen to their response and give it the proper consideration. The employee concerned should have a support person present to seek advice before responding. This may be someone from their union, a family member or perhaps even a lawyer.

Let us analyse it from a respondent’s perspective first.

As a respondent, they have a basic right to be able to respond to the allegation, put forward their side of the story, and a right to have what they have put forth considered.

On the other hand, as investigator, a manager has an important role to play. The manager cannot simply decide that the employee’s evidence does not have the ring of truth. Instead, they need to determine why they prefer one party’s evidence over the other. And it cannot be based on whether a person looks guilty or on other personal factors. For example, an employee who has been accused of sexual harassment may have been recently separated from their spouse, but you cannot assume that it is more likely that they are capable of sexual harassment on that basis. So, it is crucial when dealing with a matter to act unbiased and remain independent throughout the investigation.

During the interview stage, if an investigator is going to audio record the interview, they need to obtain the consent of the person being interviewed, preferably in writing, before doing so. Subsequently, should they provide a copy of the transcript to the interviewee. It should be noted that the legislation regarding recording interviews varies from jurisdiction to jurisdiction, so it is not the same in each state.

Regardless of the lawfulness it is good practice to always ask for consent and avoid the risk of undermining good faith in the investigator and the investigation.

Interviewer: What are some action items Fair Work expects an organisation to have done prior to terminating the employment of an employee for misconduct?

Boardman: First, this depends on the size of the organisation and in turn, the level of sophistication that is expected of them. Fair Work Australia has a Small Business Code for termination of employment that applies to organisations with less than 15 employees. And the Code sets out a step-by-step guide for employers and if they can demonstrate they have followed this then their process will be deemed to have not been unfair. This involves a series of questions, which set out the rudimentary elements of what procedural fairness is.

The Code may not apply in cases of serious misconduct.

Matters in the Code include: if an employee was given reasons for their dismissal and if they were given an opportunity to respond to the allegations.

Here are two instances we can look at:

An employee was terminated after being accused of sexual harassment in the workplace.

In this case, what is not clear is the nature of the sexual harassment that is alleged to have taken place. Whether it was a sexually offensive joke, unwanted physical contact or inappropriate staring/leering for example. For this reason, the action will depend on the circumstances and context of event. So, the fact that sexual harassment is included in the Fair Work Act definition of serious misconduct, does not necessarily mean that it would automatically lead to termination of employment. It may be considered harsh in all the circumstances.

An employee being terminated for showing patterns of underperformance.

In this scenario, an employee must be offered the chance to respond to their shortfall in performance, be provided with a written performance review document, stating the expected performance, identifying the gap and with a mapped-out plan for improving performance to the required level.

The onus falls on leaders to foster an environment that gives employees reasonable time to improve their performance. This calls for leaders to step up and provide additional training, coaching, role clarification and other relevant support to improve the employee’s overall performance.

In cases of underperformance, commissions, courts and tribunals tend to look at the timeframe between when the employee made aware of their underperformance, and the time in which they were given to improve their performance. If for some reason, an employee does not have the training or expertise in a certain area of the job, and it is a complex part of their job, it might be unreasonable of managers to expect improvement in a week’s time. If it is a more straightforward matter, like being punctual, then managers can expect a response to the warning in a short period of time.

Interviewer: Say an employee was terminated before an investigation was conducted, what rights protect them?

Boardman: The unfair dismissal provisions of the Fair Work Act allows employees to submit an unfair dismissal application to the Commission. If the employee is over the high-income threshold but employment is governed by an award or an enterprise agreement, then they can seek unfair dismissal application by the Commission.

The other avenues through which they can seek redress from the FWC is if they have their employment terminated, and it may be seen as unlawful, as opposed to unfair and or if the termination has been contrary to the general protection provisions of the FWA. This may involve an employee being treated in an adverse manner for having exercised a workplace right.

Other protections are provided by. for example. Occupational Health and Safety legislation if a Health and Safety Representative is treated in an adverse manner because they are an HSR. Additionally, some employees can pursue breach of contract through a relevant court.

Interviewer: What do managers need to do to ensure there has been procedural fairness while handling a workplace behaviour claim?

Boardman: A manager’s primary responsibility is to ensure their people’s safety, health and wellbeing is looked after as soon as an allegation has been made. So, a manager might have to take interim steps, say for example, to remove the parties from a situation which might lead to some form of physical or psychological injury. Once they have determined that the workplace environment is safe for everyone, they need to embark on a triage/investigative process to determine the facts and narrow down how the complainant seeks to have the matter dealt with.

This is where the manager’s role can become rather tricky. It is important to remember that a person should not be terminated or treated in an adverse manner because of an unproven allegation made against them. However, you may decide to suspend a person on full pay pending investigation if there is genuine risk to the health and safety. In such cases it is good practice to do a formal written risk assessment. If an employee has been stood down, it should be made clear that there is no presumption of guilt and that a proper process will be implemented to determine the facts.

If for example, an employee punches somebody in the car park on an afternoon, it may not take as long for them to comment on the matter compared to a complaint against an employee who has been displaying a pattern of sexual harassment towards another employee for a sustained period, which may require a more extensive period for a response and further assessment.

The manager must also ensure that the employee who is facing the allegation can exercise their right to have a support person with them when they are interviewed. Generally, the support person is not there as an advocate. The Small Business Dismissal Code specifically states that the support person should not be a lawyer, or an advocate acting in their professional capacity and instead should merely offer support. It should however be noted that some industrial instruments expressly authorize unions to advocate on behalf of their members.

Where to next?

iHR Australia’s Workplace Investigations Officer Training is a unique learning opportunity for leaders to develop the key principles of conducting lawful, ethical, focused and respectful investigations on cases of discrimination, harassment and bullying. Our public training calendar for the remainder of 2023 has now been released, visit this link to secure your spot today.