Procedural fairness should come into play when an employee is terminated from their workplace. They should be given the opportunity to defend themselves and provide a response to an employer’s allegations before any disciplinary action is taken. Termination of an employee should not be decided with any bias or pre-conceived ideas of the employee’s guilt. The final decision should consider all the information provided.
For a termination to involve procedural fairness, the process should include:
- Informing the allegation to the employee
- Giving the employee a reasonable opportunity to respond to the allegation
- Consider the employee’s response
- Decision is made premised on all information given and provided
An unfair dismissal is where an employee is terminated from their workplace in a ‘harsh, unjust and unreasonable’ way. Section 387 of Fair Work Act 2009 (Cth) provides the following where a dismissal may be considered harsh, unjust or unreasonable:
- unjust because the employee was not guilty of the alleged misconduct
- unreasonable because the evidence or material before the employer did not support the conclusion
- harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
- harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime)
If procedural fairness regulations are not followed, a dismissal of an employee may turn into an unfair dismissal. In the matter of Barclay v Nylex Corporation Pty Ltd (2003) 126 IR 294 it was held that a termination decision was harsh as the employer did not notify the employee of the particulars of why he had been dismissed and he was given a limited opportunity to respond.
Employees who are terminated must apply to the Commission within 21 days of the dismissal. Pursuant to s 384(4) of the Fair Work Act 2009 (Cth), casual employees are now able to have a claim for an unfair dismissal based on two indicators. These indicators include whether the employee has worked on a regular and systematic basis and there is a reasonable expectation that the employee has more work. Please see our article which outlines unfair dismissals and casual employees Angele Chandler v Bed Bath N’ Table Pty Ltd .
Therefore, it is important as an employer to ensure that all procedural fairness steps are taken to avoid having unfair dismissal claims brought against them.
If you need any help regarding a termination or an unfair dismissal, contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au.
More information
Join our Andreyev Lawyers team as we answer your FAQs about unfair dismissals. To read the transcript, click here.
The information in this post is current at the date of editing – 20 November 2024.
