Procedural Fairness, Unfair Dismissal and Employment Law

Rebecca Cheers – Lion & Lamb Law
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As a part of the practice of employment law, it is often the case than 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 Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services provided some guidance on matters to consider when ensuring that any disciplinary process is procedurally fair.

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 of the Fair Work Commission misapprehended the statutory task as it relates to s 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 be 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. The context of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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