Termination and Procedural Fairness

What does procedural fairness mean in relation to termination of employment?

Maitland Chamber Made – October 2005

By Kellie Tranter

Procedural fairness must be applied to all aspects of a dismissal. It means that an employer must follow certain rules in dismissing an employee (either written rules that are part of the contract of employment, or rules laid down by the courts). Generally procedural fairness means that the employer must deal with the employee fairly, which includes conducting a full and proper investigation; letting the employee know of the allegations; telling the employee that if proven, the allegations could lead to dismissal, and giving the employee the opportunity to respond.

If there is a procedure laid down to apply in considering the termination of an employee; the procedure must be fair and reasonable and must be followed fairly and reasonably.

The procedural fairness requirement, which is separate and distinct from any reason(s) for the dismissal, applies where an employer is considering termination of employment. The procedure an employer should follow includes that:

the employer must make reasonable inquiries into the circumstances surrounding the allegations made against the employee;
where any allegations have been made against an employee, and such allegations could lead to a termination of employment, those allegations must be presented to the employee;
the employer must take reasonable steps to ensure that the employee is aware and understands the consequences of any breach of conduct or performance standard;
the employee must be given an adequate opportunity to respond, to refute or to explain any mitigating circumstances relating to the allegations;
the employer must not make a decision on termination until the employee has had an opportunity to respond to the allegations;
where the employer has a policy and/or procedure laid down in relating to discipline and termination of employment, the policy and procedure must be observed and all requirements of the policy and procedure followed; and
if the employer decides that a termination of employment is warranted, the employer must give at least the notice (or payment in lieu) prescribed by any relevant Act, Award, Agreement or Employment Contract covering the employment.

Most unfair dismissal applications succeed because the employer fails in some way to observe procedural fairness. Where the employer has a policy or procedure, it must be followed or the courts will hold that there has been a denial of procedural fairness. Where there is no policy or procedure, the employer should at the very least take the steps outlined above.

If you are having trouble drafting an employee performance and discipline procedure, or you feel that your employees should be subject to an employment contract, you should seek proper legal assistance.

::BACK::