Procedural fairness

As part of the practice of employment law, it is often the case that an employee who has been dismissed complains that they were not afforded ‘procedural fairness’. 
 
Often the argument will be that their employer, in the process of formulating its decision to dismiss the employee, failed to give the employee a genuine and proper opportunity to respond to the allegations and / or notice of the reason for the dismissal. 
 
A recent decision of the Full Bench of the Fair Work Commission provided some guidance on matters to consider when ensuring that any disciplinary process is procedurally fair. 
 
In his initial decision in Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429, Deputy President Boyce concluded that the dismissal of Mr Bartlett was fair in all of the circumstances. 
 
Mr Bartlett appealed this decision on the basis inter alia that the Deputy President erred in his approach to consideration of the criteria in ss 387 (b) and (c) of the Fair Work Act.
 
Sections 387 (b) and (c) of the Act requires a finding as to whether the employee was notified of the reason for the dismissal and whether the employee was given a real opportunity to respond to the reason for the dismissal, respectively.  
 
Deputy President Boyce, in his original decision, made the very helpful observations in relation to procedural fairness:

Procedural fairness is neither a science, nor term of art. It requires an employee protected from unfair dismissal to be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. There is no particular form required for this ‘opportunity to respond’, and an employee may be given such an opportunity in person, in discussion, or in writing. An opportunity to respond is to be provided before a decision is taken to terminate an employee’s employment. The opportunity to respond does not require formality or technicality, and is to be considered in a common sense manner. Where the employee is aware of the particular nature of an employer’s concern about his or her conduct or performance, and has an opportunity to respond to that concern, this will ordinarily be enough to satisfy legislative requirements.

In his decision, Deputy President Boyce concluded that the reason for Mr Bartlett’s dismissal included the conduct put to Mr Bartlett as part of the disciplinary process, together with prior warnings he had been issued by his employer throughout his employment. 
 
The Full Bench concluded that the Deputy President misapprehended the statutory task as it relates to sections 387(b) and (c).  It stated that:

A consequence of the denial of procedural fairness in this case was that Mr Bartlett’s opportunity to respond before he was dismissed was unfairly narrow in scope, because he did not know that his prior warnings for misconduct were being relied upon in connection with the decision to dismiss. It may be that an opportunity to address those matters would not have made any difference to the ultimate outcome, but it is at least a real possibility that Mr Bartlett would have addressed the cumulative effect of his conduct when asked why his employment should not be terminated. Instead, the opportunity to be heard on that issue, and for any response to be considered prior to his dismissal, was denied. Accordingly, the s 387(b) and (c) considerations should have been treated as weighing in favour of a finding of unfair dismissal.

The lessons from this case are as follows:

1. procedural fairness is not science nor art, and there is no prescribed form or process to follow, other than for an employer to ensure that any reason which may be considered as a basis for dismissing an employee must be put to the employee prior to making that decision;
2. if prior warnings are to be considered as part of the reason for dismissing an employee, then the employee needs to the notified that the most recent conduct being considered by the employer, is done so in the context of the employee’s employment history with the employer and that includes the prior warnings issued to the employee;
3. the termination letter is too late to raise the employee’s prior disciplinary history, when informing the employee of the reason for their dismissal.    

Please contact a member of our Workplace Team for more information about this decision or any advice you may require in your business.