Why natural justice is key in unfair dismissal claims
Natural justice is a concept that not only applies to Fair Work Commission unfair dismissal and general protection claims, but also the wider justice system. And also, government bodies. Essentially, natural justice is a legal principal that helps ensure Australia’s courts and tribunals act in a fair and impartial manner when making legal decisions. Why natural justice is key in unfair dismissal claims is important reading.
If individuals facing allegations in a court or tribunal are denied natural justice, it can lead to them experiencing an unfair legal proceeding. Therefore, many cases brought before the courts and tribunals, like the Fair Work Commission, can rule in favour of the individual who was denied natural justice.
In this article, we provide an easy-to-understand explanation of what natural justice is and how it relates to procedural fairness. We also explain how the principal of natural justice operates in the context of Fair Work Commission unfair dismissal cases. And we provide an example of a foul-mouthed liquor store manager who despite insulting a customer, won his unfair dismissal case due to being denied natural justice.
What is natural justice?
Natural justice is a fundamental concept that lies at the heart of the judicial function, encompassing the principles of fairness and impartiality in legal proceedings. It’s based on the notion that every person should receive a just and unbiased hearing. Also, that decisions made in the hearing should be reasonable and equitable. Natural justice concerns the procedure followed to make a decision, rather than the fairness of the decision itself.
The idea of natural justice came to Australia via English common law. But the idea stems from the idea of natural law, which was a key part of Western thought dating back millennia. Natural justice is outlined in the Australian Constitution, the Administrative Decisions (Judicial Review) Act 1977, and common law. Natural justice is today a fundamental principle of most legal systems.
In addition to being a key element of Australia’s legal system, natural justice is similarly critical to our administrative law. Decisions made by government entities, such as tribunals (like the Fair Work Commission) and regulators, also operate according to the principle of natural justice.
What are the key principles of natural justice?
There are many principles of natural justice, but the key ones include:
- The right to be heard (Audi alteram partem). This guarantees that all parties involved in a legal proceeding have the opportunity to present their case before a decision is made. It requires decision-makers to provide individuals with adequate notice of the proceedings and an opportunity to be heard.
- The rule against bias (Nemo iudex in causa sua). This demands that decision-makers remain impartial and unbiased. They must not have a personal interest in the outcome of the case. And they must not prejudge a case before reviewing all the evidence.
- The right to a decision based on facts (Fait accompli). This requires that decisions are based on the evidence presented in the case and not influenced by other factors.
- The rule against double jeopardy (Non bis in idem). This prohibits an individual from being tried twice for the same offense.
How does natural justice apply to Fair Work Commission unfair dismissal cases?
In the context of Fair Work Commission proceedings, natural justice is typically referred to as procedural fairness. While procedural fairness is one part of the rules of natural justice, the two terms are similar and often used interchangeably.
Natural justice (or procedural fairness) is a key factor that is considered by the Fair Work Commission in unfair dismissal cases. Often, unfair dismissal claims are successful due to the employee being denied natural justice by their employer. An employer may have had a valid reason to dismiss the employee. But if they did not follow the principles of natural justice in dismissing the employee, it can be ruled as an unfair dismissal by the Fair Work Commission.
What rights does natural justice provide to employees?
In the context of unfair dismissal claims, natural justice (or procedural fairness) refers to the process of giving an employee a fair and reasonable opportunity to be heard. That is, before a disciplinary or performance decision is made. It is critical that an employee is provided this opportunity so that they can defend themselves from any allegations made against them.
Natural justice concerns the process and steps that an employer undertook leading up to making a decision regarding an employee. In unfair dismissal cases, the Fair Work Commission will generally consider a number of factors when determining if natural justice was provided to an employee. This includes whether the employer:
- Adhered to its established procedures when it dismissed the employee.
- Adequately communicated to the employee the nature of the allegation(s) made against them.
- Conducted a reasonable, thorough and unbiased workplace investigation into the allegation(s) made against the employee.
- Gave the employee an opportunity to respond to the allegation(s), tell their side of the story and raise any mitigating circumstances.
- Afforded the employee a reasonable time period to respond to respond to the allegation(s).
- Adequately considered the employee’s response to the allegation(s) prior to taking any disciplinary action.
- Came to a decision regarding any disciplinary action based on all relevant evidence collected.
- Permitted the employee to have a support person present during any meetings regarding the allegation(s). Also, permitting the employee to seek advice regarding their situation.
- Provided the employee with adequate warnings about their performance or misconduct. This is to ensure the employee is given a reasonable chance to improve their performance or conduct.
Now, let’s look at a recent Fair Work Commission unfair dismissal case –Bridge v Globe Bottleshops Pty Ltd [2021] – which demonstrates how important a factor natural justice (or procedural fairness) is.
Offensive store manager wins unfair dismissal because he was denied natural justice
In 2021, Globe Bottleshops received a customer complaint about its store manager, David Bridge. It was alleged that Mr Bridge had asked the customer “would you like a r**t?” Mr Bridge delivered the inappropriate question while chuckling, and quickly corrected himself by asking if the customer wanted a “receipt.”
Mr Bridge later received an email from his manager telling him about the complaint, which alleged that he had sexually harassed the customer. It also said that he was being stood down from his position while Globe Bottleshops undertook a workplace investigation.
Employee is denied natural justice during workplace investigation
Mr Bridge then provided a written response to allegation, denying that he had sexually harassed the customer. Globe Bottleshops did not feel that this response was adequate, so it asked Mr Bridge to write a second response. It was at this point that he asked Globe Bottleshops for more information about the incident. This included questions about the customer’s identity, what they bought at the store, and to view CCTV footage of the incident. But Globe Bottleshops did not comply with Mr Bridge’s requests. This was because the company wanted to keep the customer’s identity anonymous.
Without the requested information, Mr Bridge did not have anything else to add to his original written response to the allegations. And as a result, Globe Bottleshops emailed him stating that the allegations were substantiated and that he was summarily dismissed for serious misconduct. Mr Bridge then made an unfair dismissal application with the Fair Work Commission. In it, he argued that he had been denied natural justice during the workplace investigation. Specifically, that the workplace investigation had been procedurally unfair.
Fair Work Commission finds there was a valid reason to dismiss Mr Bridge
At Mr Bridge’s unfair dismissal hearing, the Fair Work Commission had to consider if there was a valid reason for his dismissal. And it agreed with Globe Bottleshops that there was a valid reason. This was based on the company’s evidence, which highlighted previous customer complaints made against Mr Bridge.
The Fair Work Commission heard that he had been previously warned by Globe Bottleshops about his often offensive sense of humour. And it found that Mr Bridge may have not intended any ill will by asking the customer if she wanted a “r**t.” However, the Fair Work Commission ruled that it would have been reasonable to predict that such a comment would cause the customer to feel harassed.
Fair Work Commission finds that Mr Bridge was denied natural justice
But this is where the Fair Work Commission’s agreement with Globe Bottleshop’s claims ended. It found that the company had made numerous errors during its workplace investigation, resulting in the denial of natural justice. In fact, the Fair Work Commission labelled the workplace investigation as “procedurally disastrous.” The Fair Work Commission highlighted a number of reasons why Mr Bridge had been denied natural justice (or procedural fairness). This included that Globe Bottleshops had:
- Not given Mr Bridge the opportunity to respond to the full and proper allegations made against him. This was because the company had refused to provide him with the information he had requested about the customer and the incident, including the CCTV footage.
- Not conducted a reasonable and thorough workplace investigation into the allegations. The Fair Work Commission found that the company had undertaken a “flawed investigation process” because it did not interview Mr Bridge about the allegations.
- Already come to a decision that Mr Bridge was guilty of the sexual harassment allegation prior to undertaking the workplace investigation.
- Had not undertaken any disciplinary action following the workplace investigation and before his dismissal. This was because Mr Bridge had not been given the substantiated allegations. And because he was not provided the chance to show cause as to why his dismissal wasn’t warranted.
Denied natural justice
Despite finding a valid reason for Mr Bridge’s dismissal, the Fair Work Commission found that he had been denied natural justice. In fact, it stated that he “was not provided with any form of procedural fairness.”
Mr Bridge’s unfair dismissal claim was therefore a success. And the Fair Work Commission ordered Globe Bottleshops to pay Mr Bridge $3,000. This was based on the assumption that he would have continued at Globe Bottleshops for two more weeks. That is, if the company had undertaken a proper and adequate dismissal process.
Have you been denied natural justice?
The case of Mr Bridge serves as a reminder that employers have a responsibility to follow strict standards during the process of deciding to dismiss an employee. The Fair Work Commission will hold employers to account when an employee has been denied natural justice.
All the steps the employer took in the lead up to dismissing an employee will be thoroughly examined. And if they have erred, the Fair Work Commission will ensure the unfair dismissal claim is successful. Even if it also found that there was a valid reason for dismissal, like in the case of Mr Bridge. It is possible for an employee who engaged in misconduct to be dismissed unfairly if they were not given proper warnings or the opportunity to defend themselves.
If you have been dismissed and feel that you were denied natural justice, A Whole New Approach can help. We are Australia’s leading workplace mediators, with extensive experience handling unfair dismissal claims. A Whole New Approach has helped over 16,000 employees in every state of Australia over the past two decades. Our team can assess your situation and determine if your employer denied you natural justice.
For individuals unfamiliar with workplace relations issues, it can be challenging to ascertain whether or not they received natural justice. This is due to the many factors and procedures that employers must follow.
If you believe you have been unfairly dismissed, please contact us at 1800 333 666 for a confidential and free consultation.
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