Resources: Blog

The importance of procedural fairness

Blog
|

“It’s all about the process”

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.

 

Similar articles

Commission finds termination letter sent to inactive email address was not notification of dismissal

You've got mail!

Given the serious nature of matters such as dismissals, employers should, as far as reasonably practicable, communicate such matters in person to ensure that there is no confusion about when the employee was made aware of any issues with their employment.

Read more...

Fair Work Commission finds dismissal was disproportionate to the gravity of an employee’s heat of the moment remark

You’re bacon me crazy

In the unfair dismissal jurisdiction, the primary remedy is reinstatement. This means the employer is ordered to return the employee to their employment in the position they held immediately prior to their dismissal or another position on no less favourable terms.

Read more...

Fair Work Commission finds employer’s failure to comply with its consultation obligations rendered an employee’s dismissal to be unfair

Pick up the phone

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

Read more...

Commission finds mask mandate to be a lawful and reasonable direction

Mask up

Employees have a duty to comply with lawful and reasonable directions from their employer. In the current COVID-19 context, a key concern for employers is whether it is lawful and reasonable to issue directions related to safety matters arising from the pandemic.

Read more...

Lack of consultation rendered mandatory vaccination requirement unreasonable

Talk before you walk

Consultation with employees always plays an important part when introducing changes in the workplace. Under work health and safety legislation, employers have a duty to consult with their workers as far as reasonably practicable in relation to health and safety matters.

Read more...

Offers of alternative employment in redundancy cases

An offer you can refuse

In most cases of redundancy, employers have an obligation to consult with affected employees about the proposed redundancy and consider whether or not anything can be done to mitigate or minimise the impact on the employee, such as redeployment or obtaining other acceptable employment for the employee.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.