Policies and procedures are a vital part of any organisation. Whether it’s providing instructions on the day-to-day operations of a business or ensuring compliance with government legislation, policies and procedures give guidance on important decision making in a company.

Policies and procedures are implemented in order to protect the rights and obligations of both business owners and their workforce, and should therefore be carefully followed and referenced back to as part of the risk management process.

The importance of procedural fairness cannot be overstated as the steps taken by an employer are just as important as any decision made. In instances where an employee is terminated, procedural fairness is of particular importance and should be carefully adhered to. Failing to do so could be deemed unlawful and have a significant impact in unfair dismissal cases.

What is procedural fairness?

Procedural fairness is concerned with the steps taken or followed in reaching a decision, as opposed to the decision itself; and plays an important factor in determining whether a termination has been harsh, unjust or unreasonable.

It can include factors such as whether an employer has followed company procedures in dismissing an employee, whether an employee had an opportunity to explain their side of whatever happened, or whether an employee was able to seek advice or have a support person available at a meeting.

Procedural fairness dictates that someone who is affected by a decision should be informed of the case against them and be given an opportunity to answer it, with fairness and impartiality required in all circumstances. What is fair will depend on each case, the individual circumstances and the foundation on which the decision is based; with the investigation free of any preconceived outcome.

Case Study

A shoe store manager was dismissed for serious misconduct which included failing to properly record and receipt the cash provided for the sale of a pair of shoes to a friend, a breach of lay by policy and falsification of timekeeping records.

The Fair Work Commission upheld that the employee had engaged in serious misconduct, and that the shoe store had a valid reason for dismissing the store manager. However, steps taken prior to the dismissal were deemed to be inconsistent with the eventual decision to terminate the employee.

During the investigation into the employee’s serious misconduct, the employer allowed the store manager to return to work. The decision to then terminate the employee contradicted the approach taken by the shoe store during the investigation in which the employee continued in his usual role.

The Commission found that the procedural errors made by the employer rendered an otherwise fair dismissal with notice case, to be an unreasonable and unjust summary dismissal. This resulted in the Commission awarding the employee $1,100 in compensation.

Making the decision to terminate an employee is difficult for any manager. However, when the decision is made, it must be done so in a manner that gives the employee a chance to be heard, is free from bias, and with some logical foundation that allows an employer to later justify any decision made.

If you need help understanding procedural fairness in the workplace or advice on complex employee matters, get in touch with our highly skilled team of HR professionals.

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