As a CEO or Line Manager, navigating workplace issues can be difficult without the right processes or know how. In order to protect your organisation from financial and legal liability, some workplace issues will, unfortunately, escalate to a point where it is necessary to formalise and document disciplinary matters.Procedural Fairness is about ensuring a fair process is followed in disciplinary matters, rather than the outcome that is reached. This primarily relates to how you engage with the employee or ‘respondent’ in the matter, including:
- Looking at all the facts and information provided, before providing the concerns or allegations to the employee in writing.
- Providing sufficient time for the employee to consider their response to those concerns or allegations, before being asked to answer any questions about them at an interview (we recommend at least 24 hours)
- Allowing the employee to have a support person (who may be a friend, family member or union representative) present with them at the meeting, and
- Genuinely considering all information and responses provided before a final decision is made as to findings and possible disciplinary action (including warning letters, or termination.)
To provide procedural fairness, you must not go into a meeting with a pre-determined outcome, you must be open to considering the response the employee is providing and any mitigating factors. Even if the employee wants you to make a decision there and then – you need to give yourself the time to make the decision based on all information provided. The decision should be made after the meeting, with the employee being invited to a second meeting to discuss the decision, where it should also be provided in writing.
Procedural fairness is something that the Fair Work Commission will review in case disputes. Upon investigation, if they deem procedural fairness was not provided to the employee, it's likely that the employees are going to be looked at more favourably in terms of any settlement made.
It is important that all Managers are adequately trained in disciplinary processes so that your organisation is protected from the risks associated with inadequate procedural fairness.
Written by Rosalind Loxton
ER Service Director, performHR
Ros has 10 years’ experience working as a HR Generalist, with expertise knowledge in the Employee Relations field. With extensive experience across the Construction, Aged Care, Logistics, and Professional Services Industries, there is no ER issue too big or too small for her strong skillset.
Specialising in workplace investigations, enterprise bargaining, award interpretation, performance management and restructures, Ros' sound advice and industry experience supports her clients in navigating the complex ER environment.
As the ER Service Director of performHR, Ros is passionate about solving ER pain points, and empowering her clients to lead, grow and protect their organisations.