Misconduct and Procedural Fairness

Misconduct and Procedural Fairness

Procedural fairness

When you are satisfied that an employee may have misconducted themselves, the usual next step is to carry out an investigation. During that process, it is critical that you afford the employee procedural fairness to avoid legal liability at a later date.

What is “procedural fairness”?

The concept of ‘procedural fairness’ (also known as ‘natural justice’) comprises two “rules”:

  1. The hearing rule: the person allegations are made against must be given:
    1. notice of the allegations in sufficient detail to be able to respond to them;
    2. the evidence on which the allegations are based;
    3. a reasonable opportunity to respond to the allegations;
    4. for their response to be properly considered by the decision-maker.
  2. The bias rule: the decision must be free of actual and apparent bias.

Why is it important?

Procedural fairness is taken into account by the courts when reviewing government administrative decisions (such as when a public servant’s employment is terminated), and by the Fair Work Commission when deciding whether a dismissal was unfair.

If, when considering an unfair dismissal claim, the Fair Work Commission determines that an employee was not afforded sufficient procedural fairness prior to their employment being terminated, it may order the employer to pay compensation to them, or if appropriate, to reinstate them.

What can you do?

One of the simplest ways to ensure all employees are afforded procedural fairness is to implement and adhere to a clear set of workplace policies. Our legal partner BAL Lawyers sells best-practice policies that are compliant with the relevant legislation in all jurisdictions, and can be tailored to suit any enterprise. You can browse their range <here>.

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