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>.

Out of  hours conduct

When can you discipline an employee for their out of hours conduct?

As a former judge of the Federal Court once said, an employer’s encroachment into the private lives of its employees must be “carefully contained and fully justified”.

It is therefore only in exceptional circumstances that an employee’s out of hours conduct can form a valid basis for dismissal – the conduct must be of “such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee”. Such circumstances fall within three categories:

  1. a breach of trust and confidence” – the conduct is objectively likely to cause serious damage to the relationship between employer and employee
    1. e.g. the employee engages in romantic relations with the employer’s spouse.
  2. damage to the employer’s interests” – the conduct damages the employer’s interests
    1. e.g. the employee sexually harasses a fellow employee, which creates a risk that the employer would be vicariously liable for it.
  3. a breach of duties” – the conduct is incompatible with the employee’s duties as an employee
    1. e.g. the employee engages in conduct that creates a conflict of interest between the employee’s and the employer’s interests.

Contact us for more information.