Procedural Fairness

Employers fined for Right Decision???? 

Impact HR offers an As Needed HR model, so we often support SME owners and managers who are confused by why they have received an email to defend their decisions before Fair Work. This is another area of the Australian Employment Law that seems biased against SMEs, without the budgets to engage lawyers. The businesses have very strong reasons for terminating an employee’s employment. So why are they in the wrong? It is often the difference between right and the right procedures. This is referred to as Procedural Fairness.   

Put simply, sometimes it is not WHAT YOU DO as an employer, but HOW YOU DO IT. 

Procedural Fairness means that if you don’t follow the right steps, even though the decision you take is justifiable, you may end up paying penalties, back pay, fines or all of them!  

Example 1: 

An employee was caught stealing from their employer. The employer understandably had no trust in the employee and terminated their employment immediately. The employee lodged a Fair Work Claim and won the case that he was unfairly dismissed. Why? The employer did not provide the employee an opportunity to explain the situation and present his side of the events. There were steps to take to ensure the process was fair. 

Example 2: 

A long-term employee, with a good performance record, starts to regularly arrive late and her work performance dropped significantly. The employer organises a meeting, which they confirmed in writing was an investigation into performance changes and provided 24 hours’ notice and the ability to bring a support person. During the meeting, the employee stated that she is intentionally arriving late as she was no longer interested in the role, didn’t care about her performance. She went on to state that the employer can “sack” her as she “doesn’t care” about the company.  

The employer verbally terminated her in the meeting and asked her to leave the building immediately. The employer received a Fair Work notification relating to the unfair, harsh and unreasonable decision. Although the judge decided that the employment relationship was over, he also stated the employer was wrong to terminate the employment relationship in the investigation meeting and required the employer to pay damages.  

These situations are difficult to navigate as it appears logical to make the decisions and act in that way. Unfortunately, without the right advice, it can be costly.  

Impact HR is here to help avoid these situations in the first place, but also manage them smoothly if they do arise. Call us on 1300 474 672 or reach out via email to info@impacthr.com.au