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Australia – “It’s Not Fair And I Think You’re Really Mean”: Just What Is Necessary For Procedural Fairness?

27 February, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

What You Need To Know

 

  • We are often asked questions about whether certain steps are necessary for procedural fairness. For example, do we need to put written allegations to a respondent? What if someone attends an interview with a lawyer? How long should we give an employee before asking for a response to allegations? There is often no simple answer. A number of factors are relevant in determining whether there has been procedural fairness. 
  • In a recent appeal by an employer against a successful unfair dismissal application by an employee, the Full Bench of the Fair Work Commission has provided some guidance on what is a fair process (and what is not unfair). This Employment Alert reports on this case and discusses some other case law guidance on procedural fairness.

What You Need To Do

 

  • In summary, when investigating allegations that an employee has engaged in misconduct, three important  steps an employer should take are: 
    • give the employee sufficient details of the alleged misconduct so that the employee understands the allegation(s) against him or her and is able to respond to those allegations; 
    • give the employee an opportunity to respond to those allegations and an opportunity to present any mitigating factors; and 
    • do not unreasonably refuse the employee having a support person present at discussions (though this need not extend to permitting the attendance of an advocate). 

We are often asked questions about whether certain steps are necessary for procedural fairness. For example, do we need to put written allegations to a respondent? What if someone attends an interview with a lawyer? How long should we give an employee before asking for a response to allegations? There is often no simple answer. A number of factors are relevant in determining whether there has been procedural fairness 


In the recent case of Victorian Association for the Teaching of English Inc v de Laps [2013] FWC 4163 the Full Bench of the Fair Work Commission upheld an employer’s appeal against a decision that there was a dismissal at the employer’s initiative. In doing so, the Full Bench made findings about whether the employer had denied the employee procedural fairness in relation to allegations it was investigating.


The Facts 


The employee commenced employment with her employer in 2003. The employer initially employed her as an Education Officer and a year later appointed her as the organisation’s Executive Officer. 


In December 2012, the employer invited the employee to attend a meeting to discuss her performance and conduct. The employee was given two days’ notice of the meeting. The employer advised the employee in writing that she could bring a support person to the meeting, but the support person was to provide emotional support only and could not act as her advocate during the meeting. 


The employee declined to attend the meeting, citing a prior commitment. The employer informed the employee that a failure to attend may be deemed a failure to comply with a lawful and reasonable direction.


On the day of the proposed meeting, the employee wrote to her employer advising that she had no objection to participating in a review of her performance. She raised concerns that the proposed process would deny her natural justice and requested that her employer give her an outline of specific issues to be discussed and engage an independent consultant to undertake the review of her performance and conduct. 


The employer advised the employee of the date for a re-scheduled meeting, to be held four days later (two of these days being a weekend). The employer also gave the employee a list of issues to be discussed at the meeting. The list included various allegations of misconduct, some specific and some more general. The day after being advised of the meeting, the employee provided her employer with notice of her intention to retire from her employment. The employee claimed that her retirement from employment was in fact a “resignation deemed termination at (the) initiative of (the) employer” as defined in the Fair Work Act 2009


At first instance, Commissioner Ryan found that the employer had dismissed the employee because she was forced to resign as a result of the employer’s conduct. Fundamental to this decision was Commissioner Ryan’s finding that the employer’s communications with the employee between 10 and 13 December 2012 were not designed to give procedural fairness. The employer appealed that decision.


Full Bench Decision 


The Full Bench upheld the employer’s appeal, finding that the employer had not denied the employee procedural fairness during the relevant period and accordingly, had not engaged in conduct, or a course of conduct, that forced the employee to resign. 


No Reasonable Opportunity To Respond To Allegations 


The employee said that the timeframe between when she received notice of a meeting (on 13 December) and the meeting itself (17 December) was so tight that this was an element of procedural unfairness. The Full Bench rejected the argument, even though there was a weekend between the dates. The Full Bench gave considerable weight to the employee conceding in cross examination that the response to the allegations that she gave to the Commission could have been provided to her employer at a meeting on 17 December, if it had taken place. 


While the ability of an employee to respond to allegations of misconduct is an important feature of procedural fairness, this demonstrates that what is a reasonable period of notice depends on the circumstances. 


When deciding on the appropriate period of notice, employers should consider what period is reasonable to give the employee a sufficient opportunity to consider the allegations and formulate a response. Factors relevant to this include the number, type and severity of the allegations and the information (or advice) that an employee may need to obtain to respond adequately to the allegations. 


Support Person Vs Advocate


The employee claimed that her employer’s refusal to permit her to attend the meeting on 17 December with an advocate was another element of unfair process. 


The Full Bench noted that a factor to be taken into account when considering whether a dismissal is harsh, unjust or unreasonable is any unreasonable refusal by an employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s387(d) of the Fair Work Act). In this context and in the absence of any other obligation to allow an advocate at the meeting, the Full Bench expressed its view that it did not think such a refusal was an element of procedural fairness. 


In this case, an important factor in the Full Bench’s finding was that there was no other obligation to allow an advocate at the meeting. In some cases, such a right may arise from the application of an industrial instrument or workplace policy. 


Failure To Disclose Material Available To Employer In Letter Of Allegations


The Commissioner held that the employer’s failure to disclose in its allegations letter material available to it was procedural unfairness. The Full Bench expressed its view that it is not apparent why this was the case. 


Vague Allegations 


The employee also categorised a number of allegations against her as “extremely vague.” The Full Bench did not consider this in detail but this is a common complaint.
In Leimonitis and another v Qube Logistics (Vic) Pty Ltd [2013] FWC 3 the Commission overturned the dismissal of two transport workers after finding that their employer provided only “scant” information about the reasons for their dismissal and failed to provide an adequate opportunity to respond to that information.

 

Simply alleging that an employee engaged in a certain type of conduct (for example, bullying) without specifying the exact actions that constituted that conduct, will not be sufficient. 


Show Cause Meetings Before Dismissal 


The employee alleged that her employer had predetermined the outcome of the misconduct investigation process, and intended to make a decision about her employment without giving her a real opportunity to respond to the allegations. 


It is important for employers to provide employees with the opportunity to respond to allegations of misconduct and present any mitigating circumstances surrounding the alleged misconduct. Employers should investigate and consider these circumstances when determining whether misconduct has occurred. 


The Commission was recently critical of an employer’s failure to investigate mitigating factors raised by an employee accused of misconduct or to provide him with an opportunity to respond when it chose to disregard those factors. In that case, Ryan v Department of Human Services [2013] FWC 4060, the Commission found that the employer had acted in a “seriously procedurally unfair manner” in relation to the employee and awarded compensation. 


Employers should be mindful of the importance of show cause meetings in the misconduct management process. Mitigating circumstances raised in such meetings can affect a finding of misconduct and the type of sanction imposed. This is particularly important if the alleged misconduct, if proven, could lead to the termination of the employee’s employment.

 

MAKING THE CASE: Insights from Geoff Giudice 


Section 387 of the Fair Work Act 2009 sets out the matters which the Fair Work Commission must take into account in considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable. The matters include:

 

  • whether the employee was notified of the reason for dismissal,
  • whether the employee was given an opportunity to respond to any reason related to the employee’s capacity or conduct, and 
  • whether the employer unreasonably refused to permit the employee to have a support person present during any discussions relating to dismissal.

Precisely what is required of an employer in relation to these matters will depend on the circumstances. The reasons for decision in VATE v De Laps give some insights into the procedural fairness issues which can arise and some indications of the Commission’s views. But whether a termination is harsh, unjust or unreasonable does not depend solely on whether the employee was treated fairly in the lead up to termination. The Commission must take other matters into account including whether there is a valid reason for the dismissal and any other matter which it considers relevant. Procedural fairness is to be considered along with all of the other matters. 


For example, where an employee is dismissed for serious misconduct, e.g. theft, and there is no doubt that the misconduct occurred, deficiencies in procedure may not be given great weight. As Ryan v DHS shows, however, even a dismissal for proven misconduct may be unfair in some circumstances. The case is a reminder that procedural fairness is important in all terminations of employment.

 

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For further information, please contact:

 

Marie-Claire Foley, Partner, Ashurst
marie-claire.foley@ashurst.com

 

Julia Sutherland, Ashurst
julia.sutherland@ashurst.com


Karen Fettell, Ashurst
karen.fettell@ashurst.com

 

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