Procedural fairness in the termination process

Background

In the case of Odgers v Central Queensland Services Pty Ltd [2019] FWC 7150, the worker was employed by a subsidiary of BHP as a Mine Employee at the Caval Ridge Mine. The worker was dismissed following an investigation that revealed she had deliberately placed butter knives and a sex toy in a colleague’s hand luggage before entering airport security. The worker admitted to doing this as retaliation for some horseplay on site a few months earlier. In addition, a few days after the incident, the worker had posed in a photo with two other colleagues exposing her bra while wearing a work-issued shirt on duty.

The worker lodged an unfair dismissal claim with the Fair Work Commission. The Commission found that the worker had engaged in misconduct which provided a valid reason for her dismissal. However, the dismissal was unfair because the worker had not been afforded procedural fairness in the termination process. In particular, the employer did not give the worker the opportunity to respond to its finding that her conduct was unacceptable and warranted dismissal. The Commission awarded the worker a specified amount of compensation for the unfair dismissal.

Implications for Employers

The above decision highlights that a dismissal will not necessarily be fair simply because a worker has engaged in misconduct. This is because the unfair dismissal laws impose a duty on employers to afford procedural fairness to employees during the termination process. Indeed, a similar obligation may be imposed on employers by their own employment contracts, enterprise agreements or workplace policies.

What will constitute procedural fairness will depend on the particular circumstances of each case. However, it generally requires an employer to take the following key steps:

• act swiftly when the alleged misconduct first comes to its attention;
• investigate any misconduct allegations in an impartial and confidential manner;
• notify the employee of any findings of misconduct and give the employee an opportunity to respond;
• give the employee an opportunity to respond to the proposed dismissal before making a final decision;
• invite the employee to bring a support person to any discussions held regarding the proposed dismissal; and
• confirm the decision in writing.

Disclaimer

This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

For further information please contact the author Martin Alden, Partner or Robert King, Partner.