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Written by The performHR Team
on February 05, 2019

 

Disciplinary processes for any organisation can often be taxing and time-consuming for all parties involved. When of a serious nature, this process can lead to a workplace investigation which adds a whole new dimension and work to the process. Ensuring procedural fairness is one part, if not, the most important part of this process.

 

In this article we discuss why this is so important, and how you can ensure that procedural fairness is honoured for each instance.

Late last year, the Fair Work Commission ruled unfair dismissal and reinstated an employee after it was proven that the disciplinary process and subsequent investigation lacked procedural fairness. Under Section 387c of the Fair Work Act 2009 (Cth), the measures for considering if a dismissal is “harsh, unjust or unreasonable” includes whether an employee was provided an opportunity to respond to allegations against them.

In the case Westpac v Deng, Westpac failed to provide Mr Deng with any written correspondence outlining specific allegations against him prior to his first disciplinary meeting. Mr Deng nominated his wife to be his support person. The conditions under which the meeting was held was compared to that of a “star chamber” by the FWC. For five hours, Mr Deng and his wife were not provided any refreshments and were only subject to two short breaks throughout the duration of the meeting. Mr Deng was shown approximately thirty to forty documents during this time. Mr Deng did not receive any written correspondence from Westpac after the conclusion of the meeting to advise on outcomes.

Mr Deng then received a letter inviting him to a meeting approximately two months later. In this letter titled “Intent to Terminate Employment”, the allegations against Mr Deng were complex, detailed and spanned across six pages. The meeting was scheduled for 24 hours later. The FWC noted that this short time frame was “not pragmatic and blatantly unfair” as Deng would not have had adequate time to prepare for the meeting which may have included seeking legal advice and collaborating policies, procedures and relevant evidence pertaining to his allegations.

At this meeting, Mr Deng provided written responses to the allegations. Some of these allegations were denied by Mr Deng, whilst others he admitted to. During this meeting, Mr Deng named staff and customers who may be able to assist in providing evidence to support his argument. The Investigator conducting this process failed to follow up on any of these sources. The FWC noted that the investigation appeared to be “nothing more than the opinions of (the Westpac investigator). There has not been a single attempt to corroborate the responses of (Mr Deng)”.

In remedy of the dismissal, Mr Deng was reinstated into his position at Westpac. Only one of the eight allegations brought against Mr Deng were found to be sustained.

Ensuring Fairness

Procedural fairness ensures that there was a fair and proper procedure that was followed to reach an end decision. This was an obvious lack in the case above, and we can take away the following learnings:

  • Timing is everything. Provide adequate time for respondents to gather and prepare their responses to allegations. 24-48 hours is often seen as a best practice time frame; however, this needs to be assessed for each circumstance and more time may be required if the allegations are complicated and long.
  • Have a break. This is not an interrogation. Provide adequate breaks and refreshments if suitable. This helps in refreshing both parties and gathering their thoughts, especially if it is a long meeting with several complicated matters.
  • Leave no stone unturned. If a party involved in the investigation provide some detail on where an allegation may be clarified or answered, this should be pursued by the investigator to ensure that all evidence has been assessed and collated to reach an unbiased decision.
  • Process. Process. There are strict criteria outlined by the FWC to ensure that process is followed. All organisations should have a policy and procedure outlining the process for dealing with disciplinary processes. If you do not have a process, please seek advice on creating one for your organisation.

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