What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
Depending upon the seriousness of the failure to follow company safety procedures, you may be entitled to reinstatement or some form of compensation under the section 391 and s 392 Fair Work Act 2009 (Cth) (the Act).
In order to win you must demonstrate that despite the misconduct, the dismissal was unfair in the sense that it was harsh, unjust or unreasonable or that proper process was not followed.
Obviously, your employer owes a duty of care to protect the safety and wellbeing of not only to you, but also your colleagues, customers and clients, as well as contract workers who may be present at your workplace. Failing to follow reasonable safety procedures puts yourself and others at risk of injury because your employer has identified a hazard and enabled processes to ensure safety at all times.
It is not uncommon for employees to be dismissed for misconduct relating to a failure to comply with safety procedures. However, you may feel that this misconduct did not warrant dismissal, even if it was ongoing. A failure to comply with company safety procedures can constitute serious misconduct. You should therefore at all times comply with reasonable directions from your employer regarding safety procedures and equipment. Serious misconduct by you will usually be perceived by Fair Work Australia as being a valid reason for termination. However, this is not always the case.
If you have been dismissed for what appears to be a relatively trivial breach of company safety procedures you may be able to bring an unfair dismissal claim against your employer. Section 385 of the Act states that a person has been unfairly dismissed if Fair Work Australia is satisfied that the dismissal was harsh, unjust or unreasonable.
If you lodge a claim with Fair Work Australia, you must be able to establish the following elements under section 385:
(a) that you have been dismissed; and
(b) your dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
If your employer claims that you failed to act in accordance with a procedure but you had never been supplied with information or training about the safety issue, Fair Work Australia may see this as being harsh, unjust or unreasonable in the circumstances.
However if you fail to comply with safety procedures merely because you didn’t like them, or it made a task too time consuming or required more effort, this is likely to be used against you, by your employer to justify your dismissal.
If Fair Work Australia determines that your misconduct contributes to the reason to dismiss you from your employment, it must reduce any compensation awarded to you by an amount that represents your misconduct. This requirement falls under section 392(3) of the Act. The Act therefore adopts a fairly common sense approach whereby the more serious the misconduct is, the heavier the reduction on any compensation will be.
If your employer is classified as a ‘small business’, less onerous requirements are placed upon them. A small business is defined by section 23 as a business with fewer than 15 employees at the time. Casual employees are not included in this count unless they are employed on a regular and systematic basis.
Genuine redundancy is defined by section 389(1). Your dismissal will only be a case of genuine redundancy if:
(a) your job is no longer required to be performed by anyone because of changes in operational requirements; and
(b) your employer has complied with any obligation under an Award or Enterprise Bargaining Agreement to consult about the redundancy. It cannot be considered a genuine redundancy under section 389(2) if it would have been reasonable for you to be redeployed within the enterprise or an associated entity.
Section 386(1) of the Act defines instances of dismissal as
(a) when your employment has been terminated on your employer’s initiative; or
(b) when you have resigned from your employment, but you were forced to do so because of the conduct, or a course of conduct, engaged in by your employer.
However, there are some situations under s 386(2) of the Act in which you will not be taken to be dismissed.
These include:
(a) if you were employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, o completion of the task, or at the end of the season; or
(b) you were an employee to whom a training arrangements applied, and whose employment was for a specified period of time, or was, for any reason, limited to the duration of the training arrangement, and the employment has terminated at the end of the training arrangement, or
(c) you were demoted in employment but the demotion does not involve a significant reduction in your remuneration or duties, and you remain employed with the employer that effected the demotion.
This means that you cannot gain protection for unfair dismissal if you were employed under a contract of employment for a specified period of time or task, were under a training arrangement or if you were demoted, if that demotion does not involve a significant reduction in duties or remuneration and you remain employed by your employer who demoted you.