Posts: procedural fairness

The Fair Work Commission has reminded employers about the duty to afford procedural fairness to employees prior to dismissal.

Managing disgruntled employees can often be a difficult and drawn out process. It may often also be difficult to see the path forward when an employee who is subject to management action seeks retaliation by lodging grievances or commencing proceedings against their employer.

In the first of a two-part blog series, we look at inappropriate conduct and behaviour in the workplace and the importance of dealing with problematic workplace behaviour.

When conducting a disciplinary process, it is crucial to ensure that a final decision on disciplinary action is not made until the employee is given a proper opportunity to respond to any allegations made against them.

Under the Fair Work Act 2009 (Cth), whether an employee’s dismissal was procedurally fair is a key factor in determining whether the dismissal was unfair. Procedural fairness requires an employee be given an opportunity to respond to or explain an allegation put to them by their employer. The employer must consider that response or explanation before deciding the disciplinary penalty – eg: a warning, or termination of employment.

It is not uncommon for employees to raise allegations against Employers in order to divert attention away from, or attempt to excuse their own misconduct.

There are often misconceptions about how many times an employee must be warned regarding their poor performance before they are able to be dismissed. Although there is no legislative requirement stipulating the number of warnings required, the Fair Work Act 2009 (Cth) provides that an employee must be warned about their unsatisfactory performance before they are dismissed for that reason.

Employees have a duty to ensure that their out of hours conduct (including social media posts) is not contrary to the obligations they owe to their employer. Further employees should also ensure that out of hours conduct is not in breach of workplace policies or damaging to the reputation of their employer.

If considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on wrongdoing as opposed to a mere suspicion of wrongdoing.

Communication between the employer and employees is essential for a good working relationship. Poor communication in the disciplinary process may lead to a deficiency in the process which renders the dismissal unfair.

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

An employer’s past job advertisements, which stated a preference for “Asian staff”, have been used by the Fair Work Commission (FWC) to support its finding that an employee was dismissed because she was not of Chinese descent.