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PROCEDURAL FAIRNESS AND NATURAL JUSTICE

9 October 2012

In the unfortunate circumstances where an employee must be dismissed it is important to follow the principles of natural justice and procedural fairness to reduce the risk of a successful unfair dismissal claim in Fair Work Australia.

Although an employer may have a valid reason to dismiss an employee it still does not preclude ensuring that the principles of procedural fairness and natural justice are adhered to.

A recent case in Fair Work Australia, Jones v Commissioner for Public Employment [2012] FWA 7069 (17 August 2012) involved a correctional service dismissing a parole officer because she failed to inform her employer during the recruitment process that her husband had a criminal record.

Before commencing her employment the parole officer had to fill out a form in the pre-employment screening phase of the recruitment process and it asked the following question:

"Do you, or have you associated with person(s) that you knew had criminal convictions other than in the course of carrying out professional duties?"

The employee failed to disclose that her husband had been convicted of a criminal offence.  She argued that the reason for not disclosing that information was because she interpreted "associate with person(s)" to mean business associates and not people in her family.

Sometime later after the employee was already employed the omission was discovered by the employer.

As a result, the employer sent her a letter stating that with her failure to disclose her husband's criminal conviction it damaged the relationship of trust and confidence in her employment.

After an exchange of letters her employment was terminated.

Although Commissioner Steel found that the employer had a valid reason for dismissing the employee the Commissioner still found that the dismissal was unfair because it was harsh, unjust and unreasonable.  This was essentially because the employer did not adhere to the principles of natural justice and procedural fairness.

The employer did not investigate the matter in any detail and also did not meet with the employee face to face to discuss her dismissal.

At no point was the employee even given an opportunity to be represented by a support person as no such meeting occurred.

The Commissioner awarded twelve (12) weeks pay as compensation.

This case teaches us that the principles of natural justice and procedural fairness need to be adhered to and this includes the following:

  • Treating employees equally;
  • Giving an employee an opportunity for representation or a support person;
  • A full consideration of relevant facts is undertaken by decision makers including undertaking an investigation;
  • Meeting with an employee face to face to discuss the issues of misconduct or underperformance;
  • A substantiation of the facts;
  • An unbiased and impartial decision maker;
  • Promptness to initiate and take action;
  • Clear communication between the parties; and
  • Documentation is compiled and maintained throughout all aspects of the procedures.

This may seem onerous however ensuring that the principles of natural justice and procedural fairness are adhered to will reduce the risk of a successful unfair dismissal claim.

For further information, please contact:

Jonathan Mamaril | Associate
Mullins Lawyers
t +61 7 3224 0323
f +61 7 3224 0333
jmamaril@mullinslaw.com.au

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