Procedural Fairness – Workplace Investigation

Procedural Fairness – Workplace Investigation – When conducting any misconduct workplace investigation, grievance investigation, performance management or any other disciplinary process it is vitally important that employers ensure that employees involved at afforded procedural fairness.

Many unfair dismissal applications are successful at the Fair Work Commission due to the absence of procedural fairness, so what exactly is procedural fairness?

The right to know the nature and details of the allegation or issue.

Employees subject of complaints or performance management or any other disciplinary process have the right to be advised of the  nature and details of the allegation or performance issue in enough detail to allow them to respond.

The right to be heard

Even is a case of summary dismissal following serious misconduct the employee has the right to be made fully aware of the complaint or allegation/s against him/her and have the ability to respond, they must also be given a reasonable amount of time to consider their response.

The right to have the determination of allegations based on the evidence only.

Employers must ensure that irrelevant factors such as personal feelings, past history and anything else not relevant to the allegation/s do not affect the determination of the allegation/s. Previous issues, warning etc can be taken into account at the point of final decision on the employee’s future if the allegations have been substantiated.

The right to an unbiased decision maker

Employers should ensure that any person effected by the allegations or a party to the investigation do not take part in the final decision making process.

Breaches of procedural fairness can be argued as being relevant at the Commission under the Fair Work Act 2009 section 387, Criteria for considering harshness for example subsections

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

While the FWA uses the term “any unreasonable refusal by the employer to allow the person to have a support person present” we highly recommend that employers offer a support person at all times.  This article contains more details about support persons

Lessons for employers – Procedural Fairness – Workplace Investigation

(1) It’s simple don’t ignore procedural fairness
(2) If you are not sure about conducting a misconduct workplace investigation or a workplace grievance investigation, contact us for expert and timely assistence.

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
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