What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
In response to recent issues such as the abortion rights debate and COVID-19 regulations, people have increasingly become engaged in activities such as demonstrations and protests. Employees who seek to attend a protest during work hours may need to speak to their employers if they foresee an absence from work.
Australian Courts have generally accepted that the freedom of assembly and association forms part of our democratic rights.[1] The right to peaceful assembly is codified at international level under the International Covenant on Civil and Political Rights[2] and at state level under the Victorian Charter of Human Rights and Responsibilities.[3]
However, the right to peaceful assembly is not absolute and is limited by competing rights and obligations.[4]
The Fair Work Act 2009 (Cth) makes it clear that employees who intend to be absent from work for a personal reason, must provide notice of their intended absence, and seek permission for doing so.[5]
In many cases, employers may give permission for an employee to elect to take a period of personal leave or annual leave to attend the event. It is recommended that employees seek clarification with their employers if they are unsure of the procedure required to take personal or annual leave. Be aware that if an employer does not provide permission and an employee fails to attend work, an employer will be entitled to initiate disciplinary measures against an employee.
If you are a permanent employee, it is unlikely that your employer will be able to lawfully terminate you on the basis that you failed to attend work for a short period of time. However, your employer will still be able to initiate disciplinary proceedings. This may include issuing a formal warning against you and inviting you to attend a meeting to discuss your absence.
If you are a casual employee or a permanent employee within your probation period, your employer does not have to give notice to terminate you. However, employers will need to be careful about ensuring that the termination is not in breach of the unfair dismissal or general protections provisions of the Fair Work Act 2009 (Cth) or they may be liable to litigation under the Fair Work Act 2009 (Cth).
If you have sought leave from your employer for the purpose of attending a protest and have been terminated as a result, call the employment lawyers at McDonald Murholme on (03) 9650 4555 to receive tailored advice in relation to your matter.
[1] Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 234, [148].
[2] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 21, 22.
[3] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16.
[4] International Covenant on Civil and Political Rights (n 2).
[5] Fair Work Act 2009 (Cth) ss 97, 107.