What is it?

Natural justice and procedural fairness describe the basic fairness expected when an employer investigates possible misconduct or serious performance concerns and considers disciplinary action. The terms are often used interchangeably. They focus on how a decision is made, not only on whether the employer believes misconduct occurred.

A fair disciplinary process will usually involve:

• clearly telling the worker what conduct or performance issue is being considered;
• providing enough information and reasonable time to understand and respond to the concerns;
• giving the worker a genuine opportunity to explain, provide evidence and identify relevant witnesses or circumstances;
• considering the worker’s response before making a final decision; and
• having the matter decided by someone who is impartial and has not prejudged the outcome.

The process should also follow any applicable enterprise agreement, employment contract, workplace policy or established workplace procedure. Depending on the applicable rules and circumstances, a worker may be entitled to have a support person or representative involved.

Procedural fairness does not necessarily require a formal, court-style hearing. What is reasonable depends on factors such as the seriousness of the allegation, the possible consequences, the worker’s role and the circumstances of the investigation. However, the process should be genuine. The outcome should not be fixed before the worker has had a meaningful opportunity to respond.

When does it apply?

Procedural fairness is relevant whenever an employer is considering disciplinary action, including a warning, demotion, suspension, transfer or dismissal based on alleged misconduct or serious performance concerns. It is especially important where the allegation could seriously affect the worker’s employment, reputation or livelihood.

It should generally be considered from the investigation stage through to the final decision. An employer may take temporary steps while investigating, such as directing a worker not to attend work. However, those steps should not automatically be treated as proof of wrongdoing or as final disciplinary action.

Workers should ask for allegations and supporting information in writing where possible, take reasonable time to respond, keep records and seek union or representative assistance early. A failure to provide a fair process may be relevant when challenging disciplinary action, although the legal result depends on the applicable workplace rules and the particular facts.

What the law says

There is no single checklist that applies identically to every disciplinary process. Fairness is assessed in context, including the seriousness of the allegation, the potential penalty, the worker’s position and the rules that apply at the workplace.

A process may be unfair if the worker is not given a real opportunity to respond, if relevant information is withheld or if the decision-maker has already decided the outcome. A minor procedural error will not always determine the result. However, a serious denial of a fair opportunity to respond can be important when disciplinary action is challenged.

Procedural fairness is separate from whether the employer ultimately had a reasonable basis for its decision. Both the process and the evidence may be relevant. In practice, an employer should be able to show that it identified the issue, gave the worker a meaningful opportunity to respond and genuinely considered that response before deciding what action, if any, was appropriate.

How it works

A practical process should be structured so the worker can understand and respond to the concerns being considered. The employer should:

• identify each allegation or concern separately;
• provide material reasonably necessary for a response, subject to legitimate confidentiality or safety considerations;
• allow a reasonable period for the worker to prepare;
• hold a meeting or use another response process appropriate to the circumstances;
• consider explanations, documents and mitigating factors; and
• communicate the decision and, where appropriate, the reasons and any review or appeal avenue.

The investigator and final decision-maker do not always need to be different people. However, anyone making the decision should approach the matter with an open mind and not treat an allegation as established merely because an investigation has taken place.

Workers should keep copies of notices, meeting invitations, responses and decisions. If information is missing or the time allowed is inadequate, they should raise this promptly and explain what is needed. They should also identify any illness, disability, language need or other significant barrier affecting their ability to participate, and request a reasonable adjustment where appropriate.

Key rules and time limits

There is no universal legal deadline for every step of a disciplinary investigation. The applicable enterprise agreement, contract, policy or workplace procedure may set specific periods. Otherwise, the time allowed should be reasonable in the circumstances. Specific time limits should be checked against the current workplace rules and the nature of any claim.

A worker should not assume that an internal review pauses an external deadline. Where employment has been dismissed, an unfair dismissal application generally must be lodged within 21 days after the dismissal takes effect. Extensions are possible only in limited circumstances, so advice should be obtained promptly. Different claims and workplace arrangements may have different time limits.

Workers should respond promptly even if they believe the process is unfair. They can explain the procedural problem while also addressing the substance of the allegations.

Example

A worker is accused of breaching a safety procedure after an incident. The employer gives them a meeting notice but does not explain which part of the procedure was allegedly breached or provide the relevant incident records. The worker asks for the documents, a short extension and union assistance.

A fair process would consider those requests and provide enough information to allow a meaningful response. The worker could explain what instructions they received, identify witnesses and provide records showing the circumstances. The incident itself should not automatically be treated as proof of misconduct.

If a manager has already told others that the worker will be dismissed, the worker should raise that concern. The employer may need to use another decision-maker or otherwise demonstrate that the final decision is being approached with an open mind.

Key points

• Check the applicable agreement, contract, policy or procedure before responding.
• Promptly ask for unclear allegations, missing documents or inadequate preparation time to be addressed.
• Keep copies of all relevant correspondence and records.
• Use a support person or representative where the applicable rules and circumstances allow.
• Explain any barrier to participation and request a reasonable adjustment where needed.
• Distinguish between an allegation, an established fact and a conclusion about appropriate disciplinary action.
• Seek union or legal advice promptly, particularly before a dismissal, a serious misconduct finding or a meeting requiring an immediate response.