Everybody with employment related responsibilities will be aware of emphasis the employment institutions have been placing on procedural fairness.
Over the last year there has been a series of decisions from the Employment Court which have commented on the depth of a ‘fair process’. These cases make it clear that now more is expected from an employer when they are conducting a process that may impact on an employee’s continued employment than has been required in the past.
The frustration employers face is that even when there is an obvious substantive reason for ending an employment relationship the employment institutions may find some fault in procedure and decide to grant the employee compensation. Even in those cases where the employee’s act warrants a disciplinary action a misstep in procedure can provide fertile ground for a claim of disadvantage.
A ‘fair process’: what does it involve
Basically, if an employer does not carry out a procedurally fair process then the employer’s decision may not be justified. This is because the employer could not have concluded that disciplinary action was necessary unless a fair investigation and a proper disciplinary or consultation procedure was carried out before a decision was made.
An analysis of recent cases suggests that a fair procedure now requires that the:
- Employee is aware of the required standard they are expected to meet.
- Employer carries out a fair investigation (one that delves into the matter in sufficient depth to allow the process to continue).
- Employer informs the employee of the particulars of the allegations against the employee (or circumstances that might impact on the employee’s continuing employment – i.e. a restructure) and provides the employee with any information relevant to the matter at hand.
- Employee is informed that they are entitled to have a support person or representative present at the disciplinary or consultation meeting.
- Employee is informed of their potential jeopardy if their explanations are not accepted by the employer.
- Employee is given a reasonable period to obtain representation, take advice and consider their response to the employer’s concerns (or proposal if a restructure) (usually at least three days from notice of the issues).
- Employer takes adequate notes during any disciplinary or consultation meetings.
- Employer provides any additional relevant information revealed as necessary or requested by the employee during the process and provides the employee with an opportunity to comment on that information before a final decision is made.
- Employer objectively evaluates the employee’s explanations and comes to an unbiased decision without any predetermination.
- Employer reserves their decision, provides the employee with reasons for the decision and gives the employee an opportunity to comment on the proposed outcome before the employer confirms it.
This does not mean that every procedural flaw will create an unjustified dismissal but rather that it may create legitimate grounds for a disadvantage claim. By following the procedure listed above such claims will be reduced.
Limiting grievance claims
- Avoid taking pre-emptive action such as stopping an employee’s wages or suspending an employee without a contractual right to do so or (if no contractual right to suspend exists) without consulting with the employee. Suspension when carried out in an unfair manner can spoil an otherwise acceptable disciplinary procedure.
- Be able to demonstrate that they considered alternatives to dismissal, took into consideration the employee’s employment history; considered the employee’s personal circumstances and treated the employee in a similar manner to other employees in similar circumstances.
One of the main elements of procedural fairness/natural justice is that the employee is able to respond to the allegations against them. A reasonable strategy for limiting the risks of a claim is to give the employee a full opportunity to ‘come clean’ or offer an explanation. If an employee is provided with such an opportunity and does not disclose their explanation an employer will be justified in proceeding to make a decision based on the information they have.
There is no doubt that an employer’s investigation and disciplinary or consultation process as well as their final decision will be open to close scrutiny by the employment institutions. So employers need to plan their approach to disciplinary and restructure processes carefully and allow themselves plenty of time to carry out each step of a ‘fair process’ before a final decision is made that impacts on an employee’s employment.
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