When considering the dismissal of an employee, employers must be mindful of the unfair dismissal regime established by part 32 of the fair work act 2009 (cth) (act). Ten key lessons from this year’s most important unfair dismissal cases kirsten robb / monday, procedural fairness is critical to how the fair work australia decides an unfair dismissal case . The issues surrounding substantive and procedural fairness come under scrutiny in relation to dismissal of employees without notice therefore, according to the employment act, a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure article 4 of the il . The outcome of a recent unfair dismissal case serves as a timely reminder of the importance of adherence to workplace policies and of ensuring procedural fairness when it comes to determining employee misconduct or implementing termination arrangements. Unfair dismissal and procedural unfairness if procedures in relation to a dismissal are not properly managed, and shows a degree of procedural unfairness, fair work can order an employer to compensate the sacked (injured) worker even if the dismissal itself was actually justified.
At the moment, it is not uncommon for a dismissal to be found to be unfair solely on procedural grounds as a result of the polkey judgment, but for the tribunal to award no compensation because the procedural failure caused no real injustice to the employee. Although a lack of procedural fairness is not always fatal in unfair dismissal cases, it may be fatal if errors in procedure lead the commission to conclude that the employee did not engage, or may not have engaged, in the conduct which the employer relied upon. Employment law essentials – what is “procedural fairness” [ 14-may-2017 ] athena koelmeyer, workplace law whether the termination of an employee’s employment was procedurally fair or unfair forms the basis of the unfair dismissal jurisdiction under the fair work act 2009 (cth) (fw act). Read procedural fairness and unfair dismissal: recent developments, business law review on deepdyve, the largest online rental service for scholarly research with thousands of academic publications available at your fingertips.
The department of trade and industry has published a supplementary review of options for changes to the law relating to procedural fairness in unfair dismissal, following recommendations from an independent review that the statutory dispute resolution procedures should be scrapped this is to . Procedural fairness rules despite serious misconduct amma’s principal employee relations consultant based in hobart, bill fitzgerald , reviews a recent unfair dismissal case which, if handled correctly by the employer, would have averted an order for nearly $12,000. When considering whether a dismissal is unfair, the fair work commission (the fwc) will have regard to two types of fairness – procedural fairness and substantive fairness. 8 february 2018 lack of procedural fairness doesn't necessarily mean unfair dismissal by michael byrnes, partner in articles and presentations on unfair dismissal the importance of procedural fairness is a recurring theme.
This article was produced by hr legal, who provide legal reviews for ecompliancetraining july 2015 employers must follow a procedurally fair process when conducting a termination in order to be in a good position to defend an unfair dismissal application. At least in the fair work commission, when dealing with unfair dismissal under the fair work act, if the seriousness of the conduct outweighs the procedural defects, then a dismissal can still be fair. The importance of procedural fairness in dismissals posted on: october 23, the applicant brought an unfair dismissal case against the respondent. More recently, principles of procedural fairness have been applied to workplace investigations into employee misconduct, particularly where a likely outcome of the processes is dismissal or demotion of the wrong-doer when an employee is charged with having transgressed a workplace rule, there are three underlying rights to which that employee . Lawyers and legislators alike have struggled with the issue of whether a finding that there was a procedural shortcoming in the dismissal process, which would not have avoided the dismissal, should lead to a finding that the dismissal was fair or unfair.
The basics of procedural fairness however are that the employee should know the case against them, as well as that dismissal is a potential outcome of the process, they should be allowed to make representations, be accompanied at disciplinary meetings and almost always be given a right of appeal. Vwv's employment law team considers whether a dismissal can be fair where an employer fails to provide written reasons for rejecting an appeal unfair dismissal and procedural fairness - the importance of your decision in writing. In summary, the unfair dismissal provisions of the fair work act 2009 (cth) require employers to only dismiss eligible employees if it has a valid reason for the dismissal and affords the employees procedural fairness in the termination process.
Repeal of the employment act 2002 (dispute resolution) regulations 2004: a report in october 2004 the government introduced a statutory minimum disciplinary and grievance procedure dealing with disputes in the workplace these procedures and related rules are set out in the employment act 2002 . Procedural fairness is sometimes called 'natural justice' if you fail to afford an employee procedural fairness before they are dismissed, your business could be exposed to a potential unfair dismissal claim from the employee, and this could occur even if:. This month, the fwc cited a lack of procedural fairness as a significant factor in an unfair dismissal case find out what you need to do to ensure that you follow procedural fairness. Unfair dismissal procedural fairness posted by fair work legal advice thursday, june 21 st, 2018 there is no doubt that the fair work commission is a legal .