Procedural fairness is one of the factors that the Fair Work Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable under the Fair Work Act 2009 (Cth). Procedural fairness is concerned with the decision making process followed by a decision maker when deciding whether to take disciplinary action against an employee. Thus, the way in which a workplace investigation is conducted, forms part of the procedural elements that are assessed. The term “procedural fairness” is often used interchangeably with “natural justice” and generally means that an employee is given the opportunity to defend themselves and raise any mitigating circumstances before a decision is made.
In order to conduct a successful workplace investigation, which is procedurally fair, the employer must ensure they have followed their own procedures when deciding to dismiss an employee, they must allow the employee an opportunity to explain their side of the story and they cannot refuse an employee seeking advice or having a support person available at any meetings. The employer must not skip or rush any part of the process or workplace investigation and they must not form an early view about the employee’s guilt or innocence.
Severely Flawed Workplace Investigation
In the recent decision of unfair dismissal in New South Wales, the Fair Work Commission (FWC) was critical of an employer who adopted an “entirely unjust and unreasonable” disciplinary process after a flawed workplace investigation. In Robertson v Imperial Mushrooms Pty Ltd, the Sydney employee was terminated for serious misconduct after a knife went missing. A Senior Supervisor on duty conducted an inventory check after the conclusion of work for the day. The Supervisor then called the employee and enquired about the missing knife. The employee suggested she may have mistakenly placed it in a tub where the knives were washed and despite their efforts, the knife could not be located.
On the following day, the employee was contacted by her manager regarding the missing knife but as she was off work for the day, she did not respond. The employee presented for work the next day and she found the missing knife, which had been placed in the wrong spot. The employee notified her manager that she located the knife and resumed her duties.
Later that day, the employee was called into a meeting where she was questioned about the knife and its subsequent discovery. The employee was stood down and provided with a letter to attend a meeting two days later. The employee attended this meeting and shortly after commencement, the employee was handed a pre-prepared letter of dismissal. The employer argued the incident caused a serious and imminent risk to the health and safety of a person, it caused serious and imminent risk to the reputation, viability, or profitability of the employer’s Sydney business, and it also represented the employee’s failure to carry out a lawful and reasonable instruction.
Fair work Commissioner Cambridge held that the employer had mischaracterized the employee’s unintentional, negligent actions as serious misconduct, which could not represent a valid reason for dismissal.
In regards to the procedural fairness, it was held that the employer did not provide the employee with an opportunity to respond, please her care, or show cause as to why her employment should not be terminated, before making the decision to terminate her employment. The final meeting was merely a perfunctory, mechanical event in which the employee was being told of her dismissal and then provided with the pre-prepared termination letter. Even if there had been some opportunity for the employee to have been heard at the meeting, there was no purpose served in hearing from the employee because the decision to terminate her employment had already been made. This was held not to constitute an opportunity to respond. The entire workplace investigation was held to be flawed and unfair.
Given the employer is a Sydney business of some significant size, with a dedicated human resources management team, Commissioner Cambridge indicated it was somewhat surprising that the employer implemented an erroneous workplace investigation that avoided any proper show cause process. Further, it was unfortunate that the employer conducted a severely flawed workplace investigation upon which it drew hasty conclusions which involved the predetermined dismissal of the employee.
Commissioner Cambridge ultimately decided that the employer gave little or no consideration to disciplinary measures other than the dismissal of the employee. The employee made an unintended but serious mistake, and her unintentional, negligent action could have appropriately resulted in some form of disciplinary action other than dismissal.
The dismissal, which was mischaracterised as serious misconduct, meant that as a disciplinary measure, dismissal was grossly disproportionate to the level and nature of the alleged misconduct. The dismissal was held to be harsh, unjust and unreasonable. The employee was awarded six months’ compensation, the maximum amount available under the Fair Work Act 2009 (Cth).
The gravity of Misconduct – Rendered Flawed Workplace Investigation Insignificant
The notion of procedural fairness becomes increasingly important in cases where there is clearly a valid reason to terminate an employee, but the workplace investigative procedure is flawed and unfair. A flawed investigative procedure may result in a finding by the Fair Work Commission that although there was a valid reason for the termination, it was still harsh, unjust and unreasonable because of the lack of procedural fairness. In some instances, however, procedural flaws may be rendered insignificant in comparison to the gravity of the misconduct and the reason for dismissal. This was held by the Fair Work Commission in a Queensland unfair dismissal case.
In the unfair dismissal case of Kevin Boyle v BHP Coal Pty Ltd, an employee made a joke at the company in front of three other employees, including two females. The joke was sexual in nature, saying words to the effect of, “if my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally”. After the employer’s workplace investigation, including a meeting with management to discuss the allegations, they decided to terminate the employee for “unacceptable conduct”. The employer argued that there was a valid reason for dismissal, particularly because the employee caused offence to the two female employees, his conduct amounted to “unlawful sexual harassment” and he contravened the employer’s well-established policies and procedures.
The employee argued that the procedure in which he was dismissed, namely the workplace investigation, was greatly flawed as he was not notified of all the reasons for his dismissal, he was not given an opportunity to respond to all the concerns, the employer failed to consider alternative disciplinary action and did not consider his remorse.
Fair work Commissioner Hunt held that “[BHP] expects its employees to abide by [its] numerous policies, but its own senior management have a complete lack of knowledge as to the application of the Fair Play Guidelines, the policy of [its own] creation”. The employer was also found to be applying the Fair Play Guidelines in a “flawed and prejudicial” manner and did not make a “holistic evaluation” of the employee’s conduct and subsequent remorse.
The Commissioner found that BHP’s dismissal of Boyle for a one-off joke was unjustified, even though the conduct was in breach of BHP’s workplace policies, Business Code of Conduct, or Charter Values. Nevertheless, the Commissioner ultimately found that Boyle should not be reinstated to his former role because of his “repetitious slur” against the two female employees and his attempts to “downplay his misconduct”. These falsified allegations were sufficient to warrant a dismissal which was ultimately fair in all the circumstances, despite the procedural deficiencies and flawed workplace investigation.
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