Have You Had Yours?
Procedural fairness in unfair dismissal cases is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself. 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.
Procedural fairness can take many forms, such as whether an employer has followed their own procedures in dismissing an employee, whether the employee had an opportunity to explain their side of whatever happened, being able to seek advice or have a support person available at a meeting and making a decision to dismiss an employee on a suitable disciplinary penalty based on all relevant information, such as warnings and disciplinary action.
Although the Fair work Commission may find that there was a valid reason for dismissal, the dismissal may still be held to be harsh, unjust or unreasonable given any procedural flaws in the dismissal process. The following cases illustrate that dismissal decisions may fall apart without procedural fairness, depending on the gravity of the alleged misconduct, and thus employers need to take active steps to ensure they follow all of their policies and procedures when dismissing an employee and conduct the workplace investigations in a sensitive, confidential and fair manner.
Theft and Fraud – Valid Reason but Dismissal Unreasonable and Unjust
In Joshua Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd, Commissioner Cambridge held that the employer’s finding of serious misconduct in respect to the allegation regarding the applicant failing to properly record and receipt the cash provided in respect to the purchase of the New Balance shoes, has established valid reason for the dismissal.
However, Commissioner Cambridge held that the manifestly erroneous approach adopted by the employer when dealing with what has subsequently been established to be both serious misconduct and significantly less serious misdemeanours, has meant that there was not proper basis to justify the summary dismissal of the employee.
The procedural errors made by the employer have rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal. The summary dismissal of the worker was held to be unreasonable and unjust.
Disrespectful and Inappropriate Behaviour – Valid reason but Dismissal Unjust
In Gregory Gibbens v The Commonwealth of Australia (Department of Home Affairs), Commissioner Williams found there was a valid reason for dismissal, observing the employee’s behaviour “was in each of the four instances disrespectful and inappropriate”.
However, the Commissioner found that the dismissal was unjust, because “at no stage did [the employer] specifically warn [the employee] that further instances of disrespectful and inappropriate behaviour when dealing with passengers could result in his employment being terminated”.
Sexual Harassment – Not Unfair Dismissal Despite Flawed Procedure
In Kevin Boyle v BHP Coal Pty Ltd, the 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 BHP’s investigation, including a meeting with management to discuss the allegations, BHP decided to terminate his employment for “unacceptable conduct” in breach of BHP’s policies in place to regulate employee conduct.
The employee sought reinstatement. Although he accepted that his joke was inappropriate, he submitted that his dismissal was in breach of BHP’s ‘Guideline to Fair Play Policy’ (the Fair Play Guide) because:
- BHP failed to inform him of all the reasons for his dismissal
- that he should have been given an opportunity to respond to all of the BHP’s concerns
- that BHP failed to consider alternative disciplinary outcomes to dismissal and failed to consider his positive employment record
- that he expressed remorse for his conduct
BHP argued that there was 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 BHP’s well-established policies and procedures.
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, policy of [its own] creation”. BHP 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 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.
Controversially, the Commissioner further found that while there are steps taken to reduce the risk of sexual harassment in the modern workplace, the Australian values of larrikinism and a sense of humour should still be valued qualities so long as it does not seriously adversely affect others. Following this decision, BHP disagreed with this assertion indicating, “We are of a different view. This behaviour is detrimental to culture, performance and the mental well-being of our broader workforce. Ongoing acceptance of this behaviour would downplay its corrosive effects and would disincentivise active reporting.”
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” by making unsubstantiated allegations against the two female employees that they were engaging in sexualised talk, which led to him to making the joke. The Commissioner held that the false assertions against the two female employees, was “reprehensible” as well as “insulting, malicious and humiliating”.
Nevertheless, the Commissioner dismissed the unfair dismissal claim, notwithstanding with procedurally deficiencies. Thus, in the context of unfair dismissal, the gravity of the misconduct (particularly in sexual harassment claims) may render the procedural flaws insignificant in comparison.
What is apparent from the above cases is that the outcome of a matter can turn on the procedures followed by an employer when responding to such behaviour. Numerous cases have shown that despite having a valid reason for dismissal, deficiencies in the process can lead to a remedy being granted – including in some cases reinstatement. Nevertheless, depending on the gravity of the misconduct (particularly in sexual harassment claims), procedurally deficiencies may still render the dismissal harsh, unjust or unreasonable.
With discretion and the option to reinstate at the hand of a Fair Work Commission member, it is vitally important for employers to have all their ducks in a row. This includes having up to date policies, procedures and workplace training, and if responding to inappropriate workplace conduct, a thorough investigation and show cause process, including giving due consideration to mitigating factors.
If you haven’t procedural fairness, given “a process that fair” or the aussie acronym “given a fair go”, then you may be able to lodge a unfair dismissal claim or a general protections claim, make the call, 1800 333 666 , its incumbent on the Employer to get this process right. You don’t have to explain why you should keep your job, its the Employer has to explain as to why you shouldn’t.
Confused?, make the call, its free!
  FWC 5141.
  FWC 4150.
  FWC 1080.