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. Call JFMLAW on 02 9331 0266 or email us on front.desk@jfmlaw.com.au