Disputes and misconduct in a workplace can be very distressing and present particular challenges. Do you feel you have received an unfair written warning at work? Do you know what your rights are?
It is important that you are aware of the complaint and that you are being investigated. Your employer should provide you with a letter which contains a detailed summary of the complaints that have been made against you, the identity of the investigator, the process and time frame of the investigation, interview dates, an outline of your rights, the identity of the final decision maker and whether or not you are being stood down from your employment.
At all times during the workplace investigation you must be provided with the concept of procedural fairness, sometimes called ‘natural justice’ which refers to a set of common law rules which regulate the way in which a decision has the potential to have a prejudicial effect on the rights or interests of a person can be made. It encompasses two primary rules.
First, the decision maker must give the person who will be subject to the decision a fair hearing. What is required for a fair hearing will very much depend on the circumstances. As Brennan J explained in Kioa v West (1985) 159 CLR 550, the rule is ‘chameleon-like’. However, the rule generally requires the decision maker to:
- Provide notice that the decision is going to be made.
- Explain the nature of the decision and its potential implications.
- Provide the person with any adverse information which may be used by the decision maker to his or her detriment.
- Give the person an adequate opportunity to respond to that information and to put his or her case to the decision maker.
Secondly, the decision maker must not be biased. Such bias can be actual or apprehended. Actual bias refers to a situation in which the decision maker has already made up his or her mind about the decision that he or she is going to make before considering all of the relevant evidence.
Apprehended bias, which is much more common, refers to a situation in which a ‘fair-minded lay observer’ might think that the decision maker may not make an impartial and unprejudiced decision. As the High Court recently explained in Isbester v Knox City Council  HCA 20, apprehended bias will arise if the persona alleging that the decision maker is biased can prove that the decision maker has some ‘interest’ which might lead him or her to decide a case other than on its merits, and that there is a ‘logical connection’ between the ‘interest’ and ‘the feared deviation from the course of deciding the case on its merits’.
How can JFMLAW help? We can assist you by guiding you through the unfair written warning at work and a workplace investigation. We can also act as your support person and legal representative. Should you require our assistance please don’t hesitate to contact us on 02 9331 0266 to discuss.