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Workplace Bulletin
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Why you need to understand ‘procedural 

fairness’

Monday, 28th July 2014, by Loran McDougall

In today's Workplace Bulletin:
  • 5  important aspects of procedural fairness
Dear Reader,

This month, the Fair Work Commission cited a lack of procedural fairness as a significant factor in an unfair dismissal case.
Procedural fairness (sometimes referred to as natural justice) means that you, as an employer, must give an employee a fair and reasonable opportunity to respond to matters or evidence that you believe justifies termination.
The case, which Charles Power outlines below, is a good reminder that a lack of procedural fairness could make you liable for unfair dismissal. This could occur even if:
  • you have a valid reason for dismissing the employee; and
  • dismissal is a fair and proportionate response to the problem.
Read on to find out what you need to do to ensure that you follow procedural fairness.
Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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5 important aspects of procedural fairness

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In Cameron Larchin v Markinol Fisheries Pty Ltd (2014), a deckhand was dismissed because his employer believed that he did not have the capacity to properly perform his job. When the FWC found the dismissal to be unfair, its reasons included that:
  • the employee was not warned that his job was at risk; and
  • the employee was not given a genuine opportunity to respond to concerns that he did not have the capacity to perform his job.
5 things you must do to follow procedural fairness
To ensure that you follow procedural fairness when you’re considering dismissing an employee, do the following five things:
  • Give the employee a clear warning. In doing so, you should:
    • advise the employee that, unless they improve their conduct or performance, their employment may be at risk;
    • give the employee a reasonable amount of time to improve; and
    • offer the employee training or the opportunity to develop their skills.
  • Ensure that the employee understands the issues, and the consequences, in sufficient detail.
  • Provide the employee with an opportunity to respond to your reasons for wishing to terminate their employment.
  • Allow the employee to have a support person present at any meetings concerning their potential dismissal.
  • Ensure that you, and any other decision-maker, are unbiased.
Regards,
Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook




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