What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
Courts and tribunals can be helpful in telling you what forms you must complete and timelines for action. If you make a mistake the court or tribunal is generally not held responsible. If, for example, you follow the advice from Fair Work Australia and you bring an unfair dismissal claim when you should have brought a protected action claim you cannot blame Fair Work Australia for your mistake, even if it has dire consequences for you.
A good example of the need to bring the correct form of claim is found in the decided case of Gordon v Express Gas Operations Pty Ltd [2007] MARTINCA 1059, where Gordon won $8,000 plus 8 weeks’ pay in an unlawful termination claim. Gordon would probably have failed in an unfair dismissal claim because his chronic lateness might have been a valid reason for dismissal. Gordon might have also failed because the employer was a small company and the requirements for procedural fairness are waived for small companies. However, Gordon correctly brought a claim to the Federal Magistrates Court which found that one of the reasons for dismissal was Gordon’s temporary absence from work.
It is sometimes said by the information desk at Fair Work Australia that you do not need a lawyer to represent you. However you should not forget that most employers these days are large and powerful with sophisticated and well trained human resources departments. You should not expect Fair Work Australia to remedy this imbalance and there are plenty of sources of representation which you may be able to afford. Fair Work Australia is an impartial tribunal which must be fair to both parties no matter what the imbalance in their respective bargaining power and you may lose out without representation. This point is well illustrated in the case of Leanne McKnight v Business Security & Management Solutions Pty Ltd T/A BSMS [2011] FWA 3353.
In this case Ms McKnight lodged an application to Fair Work Australia to deal with a contravention of the general protections provisions of the Act involving dismissal on her own behalf. The matter was listed for conference. BSMS Security (the named Respondent) indicated that it was not the employer but that an unrelated company, MIB Services Pty Ltd, was in fact the employer. As a result of Ms McKnight’s error her application was held to be improperly made and was therefore dismissed. Despite her wish to pursue a claim against the correct employer, she was informed by Commissioner Bissett that she would need to lodge a fresh application at her own expense naming MIB Services Pty Ltd as the employer.
A similar situation arose in the case of Robert Uitdenbogerd v Australian Taxation Office [2009] AIRC 39. Mr Uitdenbogerd had been employed in a senior position as an APS4 Compliance Field Officer with the ATO before he was dismissed in 2007. He made an unfair dismissal claim against the ATO alleging that his dismissal was harsh, unjust or unreasonable. Mr Uitdenbogerd was self-represented at the hearing. The Australian Industrial Relations Commission dismissed his complaint after finding that the Mr Uitdenbogerd, an unrepresented applicant, had made ‘bland assertions unsupported by evidence’ which could not be accepted by the Commission. Commissioner Williams stated that Mr Uitdenbogerd was ‘unsure how to prosecute his case and how to bring forth evidence in support of his assertions.’ He stated that despite this the applicant had the opportunity to extensively argue his case and had received a fair go all round in these proceedings.
A further example is found in the case of Pauza v MGE UPS Systems [2007] AIRC 482 where Commissioner Redmond stated that he had ‘some concern as to the manner and demeanour of the applicant’ after the self-represented applicant ‘showed somewhat an aggressive tendency in the way he…proceeded to question’ other people present. Cases such as these highlight that a tribunal will not necessarily look favourably upon self-represented applicants who are unable to properly adduce evidence and argue their case.
Anti-discrimination claims are often made at the Victorian Equal Opportunity and Human Rights Commission. It has a heavy workload and it sometimes finds it difficult to deal with cases within the timelines imposed by the law. Given its limited resources you should not rely too heavily upon its assistance to draw up your claim and to provide you with in-depth support of your claim. Again the Commission must be independent and fair. It has limited powers. Traditionally the Commission has performed its work to a very high standard because it has maintained its independence and been true to its legislative obligations.
Courts have over the years grown increasingly more consumer friendly so that you have access to justice and are not mystified by ‘the system’. However you should not be lulled into a false sense of security that merely because a court is friendly, helpful and obliging to you, in the end the decision of the judge will be favourable to you. Good judges are trained to make difficult decisions and if that means that you lose when you believe you should win, one might coin the phrase ‘too bad, so sad’.
There are many examples where a government official employed by a tribunal may give helpful but necessarily incomplete ‘advice’ because that official is aware only of the operations of his or her own tribunal and not the wider court system.