What is Procedural Fairness?

In regard to the workplace, ‘Procedural Fairness’ refers to an employee being given an opportunity to defend themselves and raise any other mitigating circumstances before a disciplinary or performance decision is reached. This term is also often referred to as ‘natural justice’.

In order to appropriately practice Procedural Fairness, the following steps must be taken before any disciplinary action is taken:

• Advise the employee of the allegation/s made against them or the issues to be dealt with;
• Provide the employee with a reasonable time period to respond;
• Consider the employee’s response before making a decision and conduct reasonable and thorough enquiries; and finally
• Make a decision on suitable disciplinary action based on all of the information collected.

What happens if the rules of Procedural Fairness are not followed?

Under Australian employment law, an employee must be given a fair and reasonable opportunity to know, understand and respond to any allegations made against them before disciplinary action is taken.

Employers could be exposed to a potential unfair dismissal claims if a dismissed employee can show that they were not afforded this right. An employee may claim unfair dismissal even if the employer had a valid reason for the dismissal or if dismissal was a fair and proportionate response to the problem at hand. Many unfair dismissal claims are upheld by the Fair Work Commission because the employer failed to follow due process.

When the Fair Work Commission is assessing a claim for unfair dismissal, the following questions will be considered:

• Was the employee notified of the reason for dismissal?
• Was the employer given an opportunity to respond to any allegations relating to the reason for dismissal?
• Did the employer unreasonably deny the employee a support person when undertaking discussions related to the dismissal?
• If the dismissal was related to unsatisfactory performance by the employee, were they given warnings relating to this, prior to the dismissal?
• Is dismissal a reasonable consequence of the employee’s conduct.

Typical examples of procedural fairness not being observed can include:

• Employers failing to thoroughly investigate an issue before deciding on disciplinary action;
• Refusing the employee’s right to a support person in relation to the investigation or dismissal;
• Failing to issue a warning for underperformance prior to dismissing the employee;
• Not providing the employee a reasonable opportunity to improve their performance following a warning and prior to dismissal;
• Not allowing an employee to respond to allegations made against them;
• Failing to apply disciplinary action equally to all employees.

Ensuring the Rule of Procedural Fairness are Followed

Having clearly stated policies and procedures regarding underperformance, misconduct, disciplinary action and dismissal is essential for all organisations. Within these policies and procedures, the rights of the employer and employees should be clearly stated as well as descriptions of the steps the organisation will take in regard to informal and formal discussions regarding misconduct or underperformance.

By having clear policies and procedures, it ensures that managers who are responsible for addressing underperformance and misconduct understand the importance of procedural fairness, have consistency in their approach and are supported by the organisation to minimise error or legal issues. It also ensures that all employees are aware of the procedures involved in managing underperformance, misconduct and disciplinary action.

Copies of these policies and procedures should be accessible by all employees and brought to the attention of new employees to ensure their ongoing effectiveness. If an employee claims unfair dismissal, the employer will need to be able to prove that they were aware of, and understood ,the policies and procedures of the organisation. For this reason, it is wise to have new employees sign off on having read the relevant policies so that there is a record of this in case of future action.