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“It’s all about the process”

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The importance of procedural fairness

While the Todd Carney saga demonstrates the immediacy of social media, the subsequent action of the Cronulla Sharks serves as a reminder to employers that procedural fairness is still required in the disciplinary and termination processes.

While the Todd Carney saga demonstrates the immediacy of social media, the subsequent action of the Cronulla Sharks (the Club) serves as a reminder to employers that procedural fairness is still required in the disciplinary and termination processes.

After the image of Carney surfaced on the internet in June 2014, the Club swiftly elected to terminate his contract. Carney and his manager maintained that they were only notified of the Club’s decision after the announcement was already made to the press.

Carney’s employment was governed by the Collective Bargaining Agreement (CBA). The CBA provides that a player is to be issued a breach notice and is then to appear before the Club’s board to “show cause” (i.e. explain and defend his actions).

Carney’s appeal to the NRL Appeals Committee was upheld in March 2015, where it was found that the Club did not provide Carney with the opportunity to address the Club’s board before his contract was terminated. Therefore, by failing to do this Carney claims that the Club has breached the requirements of the CBA.

Last week, Carney and his legal advisors indicated that legal action would commence as the Club failed to follow the disciplinary procedure as outlined in the CBA and therefore failed to provide Carney with procedural fairness.

While social media may provide immediacy – dealing with an employee’s employment usually cannot. It is important to remember that the basic principles of procedural fairness require employees to be notified of the allegations, and be given an opportunity to respond to those allegations before any disciplinary decision is made.

As outlined in our blog last week – If I can be serious for a moment - getting serious about serious misconduct, summary termination will only be available where the conduct could be considered to be ‘serious misconduct’.

As Carney’s dismissal related to his off-field conduct, our blog next week will look at what employers can and can’t do to when it comes to the outside of work hours conduct of their employees.

 

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