Are you following procedural fairness principles when disciplining or dismissing staff?
Even if there is a valid reason for the termination of an employee, quite often the termination may be regarded as an ‘unfair dismissal’ by the Fair Work Commission (FWC) because procedural fairness has not been followed.
What is Procedural Fairness? Procedural fairness requires fair and proper procedure to be used when making a decision. In employment law, this means that you must give an employee a fair and reasonable opportunity to respond to matters that you believe justify terminating their employment and that you follow processes that provide notification and explanation.
Key principles you must follow to ensure you provide procedural fairness and are not exposed in unfair dismissal claims are:
- Provide the employee sufficient formal notice of meetings and their purpose.(eg disciplinary or termination)
- Afford the employee the opportunity to the employee to have a support person at the meeting
- Provide the employee reasonable time to improve their conduct or performance
- Ensure the employee is made aware of any allegations concerning their conduct so as to enable them to respond to them. This involves providing an employee with sufficient information to understand the nature and specifics of the allegations of which they are accused.
- Remaining open to what the employee has to state in defence. Where an employer attends the meeting with a pre-prepared termination letter or a firm decision already made, irrespective of what the employee states, indicates that the employer has denied the employee an opportunity to respond.
If you fail to afford an employee procedural fairness before they are dismissed, your organisation could be exposed to a potential unfair dismissal claim from the employee and this could occur even if:
- you have a valid reason for dismissing the employee; and
- dismissal is a fair and proportionate response to the problem.
Speak to the team at Your HRmanager for assistance in managing underperformance and when you are considering dismissing an employee to ensure your processes follow procedural fairness principles.