The Importance of Procedural Fairness

Ending employment is not always about why you ended someone’s employment – it is also important that you follow a fair and just process. This is called “procedural fairness”.

An employee is behaving in a way you deem completely unacceptable. Other employees are intimated. The employee berates and belittles others. Their behaviours just make others miserable. The employee is failing to follow instructions and are not completing the tasks you ask of them.

You have had enough, and you end their employment.

Now you face an Unfair Dismissal Claim.

How is this unfair, if their behaviour was so horrible? The answer is, probably, you didn’t offer procedural fairness.

Defending against an Unfair Dismissal Claim

To defend an unfair dismissal claim, you must have to have a valid reason to end employment.

But, you have to also demonstrate you have followed a fair and just process.

In other words, you have to make sure you offer “Procedural Fairness”

What is Procedural Fairness?

Procedural Fairness is concerned with the procedures used by a decision maker, rather than the actual outcome reached. It requires a fair and proper procedure to be used when making a decision.
It usually means that the employee is given the opportunity to provide feedback regarding your concerns and raise any mitigating circumstances before a decision is made.

How can you ensure Procedural Fairness?

1. Always discuss your concerns with your employee at the earliest opportunity.
2. If, at any step in this process, your employee requests a support person – do not unreasonably refuse their request.
3. Document your conversations.
4. Provide your employee with an opportunity to improve or overcome any performance concerns.
5. Keep all evidence regarding your concerns. Provide these to your employee when discussing the issues.
6. Request your employee respond to your concerns in writing where necessary. If this is not possible, take notes on your conversations.
7. If you are considering ending employment, advise your employee of your consideration
8. Ask your employee to tell you why you should not end their employment. This is commonly done through a show cause process. This process allows the employee to tell you why their employment should not end.
9. Review and consider the employees responses why their employment should not come to an end. Document your review and your responses.
10. If, after completing your review of the responses, you decide to end employment:
    1. Communicate your decision to the Employee, preferably in person. Note: advice over social media or text message is not an appropriate method.
    2. Forward a termination letter. This letter should outline your reasons for ending employment. It is also good practice to document:
       1. The concerns you had with the employee,
       2. The process you have followed; and,
       3. Your feedback to the employee in regards to their response to the show cause process.

Need Assistance?

For more information on ensuring you have a fair and valid process in place, contact People Smartz Pty Ltd on:

• Telephone: 1800 HR Smartz (1800 477 627)
• Email: hrsupport@peoplesmartz.com.au
• Website: https://peoplesmartz.com.au/contact

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