What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
At common law, employers are not under an obligation to conduct workplace investigations in a manner that is fair or reasonable: see Commonwealth Bank v Barker (2014). Despite this, the law does provide workers with very powerful protections against the unreasonable and capricious demands of their employers. Therefore an employee has to be very careful how he/she participates.
At common law an employer can only require that an employee comply with a direction that is “lawful and reasonable”: see R v Darling Island Stevedore & Lighterage (1938). In the case of workplace investigations, it may be unreasonable for an employer who has made allegations of misconduct against an employee to require a response in circumstances where inadequate time has been provided. Adequate time may be a week or more, not a few hours.
Meanwhile, under the Fair Work Act 2009 (Cth), an employee who is being terminated has a quasi-negative right to be provided with a ‘reasonable opportunity’ to respond to the reasons submitted for their dismissal.
This right arises in cases where the dismissed employee is entitled to protection from unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Cth). To be eligible for protection a dismissed employee must show that they were an employee at the time of their dismissal, that they had served for the required minimum period of time, and that they had either been covered by a modern award or enterprise agreement or had been earning less than the high income threshold.
For an eligible unfair dismissal Applicant to be successful, the Fair Work Commission must be ‘satisfied’ that the dismissal was harsh, unjust or unreasonable. In deciding whether the dismissal was harsh, unjust or unreasonable, the Fair Work Commission will give consideration to whether the Applicant’s dismissal was effected in a manner that was both substantively and procedurally fair. With respect to the latter factor, consideration will be given to whether the Applicant was given a reasonable opportunity to respond to any reasons for their dismissal.
What may count as a reasonable opportunity to respond is highly dependent on the specific facts of each case. However, it is clear that as a general rule the more serious the allegations are the more time the employee should have to prepare.
In conjunction with considerations of whether an employee was given a reasonable opportunity to respond, the Fair Work Commission will also consider whether the employee was unreasonably refused a support person during dismissal discussions.
In Laker v Bendigo and Adelaide Bank Limited [2010] an employee, who was being dismissed for poor performance, requested that a disciplinary meeting be rescheduled to allow for the attendance of a union representative. This request was refused. It was later found that such a request was not unreasonable in the circumstances.
By contrast in Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012], the denying of the requests of an employee’s representative to have two disciplinary meetings rescheduled was not found to have been unreasonable. In this case the employee had been given adequate notice of the disciplinary meetings and their requests to have them rescheduled were at too short notice.
In addition to the above, some employees may also be subject to awards or enterprise agreements that require their employers to follow certain procedures in carrying out workplace investigations. Meanwhile other employees, such as those who hold certain public offices, may also be able to demand compliance with principles of ‘natural justice’ including the right to a fair hearing.
The question of whether a particular deadline is or isn’t reasonable is, as the foregoing should illustrate, a very grey area of law. If you are currently facing a workplace investigation and being pressured to provide a response to allegations made against you, please consult a lawyer who will be able advise you on the specific facts of your case.