Unfair dismissal: Why procedural fairness matters
When an employee is dismissed, there are many factors that the Fair Work Commission (FWC) considers to determine if the dismissal was unfair. It must, of course, meet the definition of an unfair dismissal, (valid reason). Which is one that was harsh, unjust or unreasonable. The reason for the dismissal must also be sound, defensible or well founded, among many other factors that the FWC considers. Unfair dismissal: Why procedural fairness matters is important article to read, so you know your rights.
There is one factor, however, that many Australian workers may overlook as key to their chances of making a successful unfair dismissal claim. That is, whether they were denied procedural fairness prior to being dismissed.
What is procedural fairness?
Procedural fairness, also known as natural justice, is when an employee is provided with a fair and reasonable opportunity to be heard before a disciplinary or performance decision is made. That is, so the employee can defend themselves or raise any extenuating circumstances relating to the allegation made against them.
Procedural fairness relates to the decision-making process and the steps taken by an employer, rather than the decision itself. When the Fair work considers procedural fairness in an unfair dismissal case, it will generally take into account whether:
- The employer followed its own procedures for dismissing an employee. And also, that it conducted reasonable and thorough enquiries relating to the issue that led to the dismissal.
- The employee was provided the chance to explain their side of the story
- The employee was able to seek advice or have a support person present at a meeting discussing their issue
- If the issue involved unsatisfactory performance, whether the employee was provided warnings about their performance
- The employee was provided a reasonable amount of time to respond to the issue
- The employer considered the employee’s response to the issue.
Why procedural fairness is critical in unfair dismissal cases
In many unfair dismissal cases, an employee could be guilty of misconduct that would provide a valid reason for their dismissal. However, if they were denied procedural fairness, their dismissal can be deemed as unfair. This is because without procedural fairness, an employee is generally not given the opportunity to respond to the claims made against them. They therefore aren’t given a proper chance to improve their conduct.
Let’s look at one such case of an employee who had regularly behaved in a manner that justified dismissal, DeVania Blackburn v Virgin Australia Airlines T/A Virgin Australia [2022]. However, because she was denied procedural fairness, her dismissal was deemed unfair by the Fair work Commission.
Napping, movie-watching flight attendant is reinstated by FWC
In July, a Virgin flight attendant who had been dismissed for numerous instances of misconduct was reinstated by the Fair work. She had been dismissed for napping on the job, stealing snacks and watching a movie during a flight.
The Fair work found that Virgin’s investigation into the misconduct had been delayed by COVID-19, contributing to several procedural fairness deficiencies. This investigation came after the flight attendant – a 14-year Virgin employee – was alleged to have breached her employer’s code of conduct numerous times.
What was the flight attendant accused of?
Most of the flight attendant’s alleged misconduct took place on a flight from Brisbane to Cairns in January 2021. Firstly, the flight attendant was observed stuffing Virgin food products into her bag by her colleagues. She then departed the aircraft with the bag containing the food. This was in contravention to Virgin’s code of conduct, which states that staff can eat airline food while on board, but can’t take it off the aircraft.
Secondly, the flight attendant was observed sitting in a passenger seat and watching a movie on an iPad. This was while her colleagues were providing in-flight service to passengers. The flight attendant was later observed to be asleep in the same seat.
Thirdly, the flight attendant did not sign on or off from duty. She also failed to do this on a separate flight in February. And finally, on the January 2021 flight, the flight attendant was not dressed and presented in accordance with Virgin policy. She was not wearing makeup, her hair was messy and her nail polish was chipped. And on another flight in March, the flight attendant did not wear stockings.
How procedural fairness factored into this unfair dismissal case
These allegations resulted in Virgin conducting an investigation into the flight attendant’s misconduct, which took place over the course of a month. This resulted in a show cause letter being sent to her. That is, a letter that required her to demonstrate why her employment should not be terminated.
In response to the show cause letter, the flight attendant denied the allegations of misconduct made against her. She even stated that she considered the allegations as “defamation,” and that they had been made out of “spite.”
The flight attendant was then invited to a meeting in which she could verbally respond to the allegations. And she was given the opportunity to have a support person attend this meeting. The flight attendant agreed to attend, and during the meeting, said that she had nothing further to say about the allegations.
Following the meeting, the flight attendant was advised that she would be immediately dismissed. She was later sent a termination letter confirming her dismissal.
How did Virgin fail to provide procedural fairness?
From what we have detailed so far, it seems like Virgin did everything right in its handling of the flight attendant’s misconduct. It had notified the flight attendant about her misconduct in writing. It had also set up a meeting allowing her to respond to the misconduct, with the option of having a support person present.
However, at the flight attendant’s unfair dismissal hearing with the Fair work, it was found that Virgin had failed to provide sufficient procedural fairness leading up to the decision to terminate her employment. There were three main deficiencies that the Fair work identified.
First reason the dismissal was procedurally unfair
Firstly, the Fair work found that Virgin had relied on prior warnings that it had issued to the flight attendant to make its decision to dismiss her. But it had failed to include these warnings in the show cause letter or the letter of termination.
The Fair work found that Virgin’s reliance on these warnings was procedurally unfair. This is because it did not let the flight attendant know that they played a part in her dismissal. Also, because Virgin did not provide her with a chance to respond.
Second reason the dismissal was procedurally unfair
Secondly, the Fair work found that Virgin failed to consider the flight attendant’s medical condition when investigating why she had not signed on or off her duties. The flight attendant had not informed Virgin of this condition until the show cause meeting. But the condition was not considered in Virgin’s decision to dismiss her.
Third reason the dismissal was procedurally unfair
Thirdly, the Fair work found that the length of the investigation contributed to the process being procedurally unfair. The investigation had taken a month, and it took several more for the flight attendant to be sent a show cause letter. This delay was caused by the heavy load Virgin’s HR personnel were experiencing because of COVID-19 issues, such as border restrictions and stand downs.
Commissioner Paula Spencer accepted that these factors contributed to the delay. But she said that the process of dealing with the flight attendant’s misconduct could have been handled better by Virgin.
“Apart from the prior warning (which was not relied upon), the alleged breaches and events occurred in a confined period, in short proximity to each other, and in the circumstances might have been dealt with by a significantly clear warning, where the result for a repeat of the conduct should have been established,”
Commissioner Spencer
For these reasons, Commissioner Spencer ruled that the flight attendant’s dismissal was unfair. She found that Virgin had failed to properly assess the circumstances surrounding the misconduct. And that instead of dismissal, the company should have reasonably considered alternatives forms of disciplinary measures.
Have you been denied procedural fairness?
The aforementioned case teaches us that employers are beholden to very rigorous standards when it comes to the decision-making process around dismissing an employee. If an unfair dismissal case is heard by the Fair work, the steps an employer took leading up to the dismissal are important. also the way it communicated with the employee will be closely scrutinized.
A dismissed employee may have undeniably engaged in misconduct. However, if they were denied certain rights, like warnings about the misconduct or the opportunity to defend themselves, the dismissal can be ruled unfair.
Conclusion to Unfair dismissal: Why procedural fairness matters
Have you been unfairly dismissed?
We at A Whole New Approach are experts in handling unfair dismissal claims. For the last two decades, we have helped over 16,000 employees make claims in every Australian state. With our experience, we are able to assess your situation to identify if you were denied procedural fairness by your employer.
For those not familiar with workplace relations issues, it is often hard to determine if you were in fact provided with procedural fairness or not. This is because there are so many factors involved and processes that employers must adhere to. All casual employee issues, toxic workplaces, abandonment of employment concerns, whatever we are here for you
If you feel you have been unfairly dismissed, call us today on 1800 333 666 for a free and confidential conversation.
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