What does it mean for my employer to give procedural fairness?

Procedural fairness broadly relates to the decision-making process followed or steps taken by a decision maker, not the actual decision itself. It is an aspect of natural justice; an unyielding principle which stipulates the right to be made aware of, and respond to, information that will be used in decision making processes.

The rules of procedural fairness will apply to any person who may be directly and adversely impacted by an administrative decision. If this includes you, it is important that you understand what your employer’s obligations are in fulfilling their requirement of procedural fairness.

The recent case Aurizon Operations Limited v Cameron Webb [2024] FWCFB 318, heard before the Full Bench of the Fair Work Commission, has offered valuable insight into what procedural fairness demands of employers.

Aurizon Operations Limited v Cameron Webb
Mr Webb was subjected to allegations by his employer, Aurizon Operations Limited. Upon receiving the “letter of allegations”, Mr Webb was requested to attend an “information gathering” meeting the following day.

Mr Webb, being a part of the Australian Rail Tram and Bus Industry Union (RTBU), was supported by the RTBU industrial officer, Mr Hart, throughout this process. Out of concern for the lack of procedural fairness afforded to Mr Webb, Mr Hart attempted to alert Mr Webb’s supervisor to the Aurizon NSW Coal Operations Enterprise Agreement 2021 and the requirement for workplace investigations to abide by natural justice.

Despite Mr Hart stressing the above and his subsequent requests for the meeting to be cancelled, the supervisor dismissed these concerns and replied that Mr Webb should attend the meeting. The supervisor did not advise whether Aurizon had any evidence to present at the meeting, having informed Mr Hart that Aurizon had provided Mr Webb with “sufficient information” to enable the provision of a response.

Mr Hart and Mr Webb attended the meeting and another outcome meeting on 23 January 2024, during which the supervisor presented Mr Webb with a “show cause” letter inviting him to provide a written response as to why Aurizon should not dismiss him.

Ultimately, the investigator found that the incident was more likely than not to have occurred as alleged. The supervisor informed Mr Hart on 25 January 2024 that the investigator reached his determination by reviewing relevant ancillary information, which included the Complainant’s evidence, the evidence of witnesses who observed the Complainant immediately following the incidents and Mr Webb’s text message and responses. Aurizon refused Mr Hart’s request to provide Mr Webb with a copy of the investigation report, claiming it “was confidential” and “ancillary information”.

The Full Bench’s Decision

This matter was initially held before the Deputy President before being ruled by the Full Bench of the Fair Work Commission. To assist them with their decision, the Full Bench referred to the case Coutts v Close [2014] FCA 14, whereby the Federal Court determined that to achieve natural justice, the affected individual must be afforded the opportunity to put information or submissions to the decision maker, so as to present their case. The Court went onto say that in order for that right to have substance, the affected individual must be given a reasonable opportunity to address issues relevant to their interests, which requires the decision-maker to:

• inform the affected person of the nature and content of adverse material that is credible,
  relevant and significant, and obtained from sources other than the affected person;
• inform the affected person of any adverse conclusion reached by the decision-maker in
  respect of which the affected person had no notice;
• give the affected person an adequate opportunity to address such new material and/or any
  unexpected conclusions by further information and submission.
  

Accordingly, the Full Bench found that there was a breach of natural justice and due process.
This is because the investigator was required to put the substance of the adverse evidence to
Mr Webb during the investigation process and prior to making a finding, including the ancillary
information that the supervisor referred to.

Key takeaways

There is an obligation for your employer to afford you procedural fairness if your
interests could be adversely affected by an administrative decision.

• You must be given the opportunity to present your case to the decision maker and to
  address issues relevant to their interests, which requires the decision maker to:
  • inform you of adverse material that is credible, relevant and significant;
  • inform you of any adverse conclusion reached by the decision-maker in respect of
    which you had no notice;
  • give you the opportunity to address such new material and unexpected conclusions.
• Your Enterprise Agreement may inform you of your company’s specific investigative
  procedures.

If you believe that your employer has not complied with their obligation to provide you with
procedural fairness, you should seek legal advice. Please do not hesitate to contact our
experienced solicitors at (03) 9650 4555.