Procedural fairness is one of the first things employers learn about managing misconduct and performance issues. Employees should understand the concerns being raised, be given an opportunity to respond and have that response genuinely considered before a decision is made.
That remains best practice and, in most cases, the safest approach. However, procedural fairness is not a standalone test that automatically determines whether an employer wins or loses an unfair dismissal claim. It is one of several factors the Fair Work Commission must consider when deciding whether a dismissal was harsh, unjust or unreasonable.
Those factors include:
- whether there was a valid reason for dismissal relating to the employee’s capacity or conduct;
- whether the employee was notified of that reason;
- whether the employee was given an opportunity to respond;
- whether the employer unreasonably refused a support person;
- whether the employee had been warned about unsatisfactory performance, where relevant;
- the size of the employer’s business;
- whether the employer had dedicated human resources expertise; and
- any other circumstances the Commission considers relevant.
The safest course is to address all of these factors. However, the Commission does not simply work through the list like a checklist to determine that all elements have been ticked. It considers and balances all the circumstances before forming an overall view about whether the dismissal was fair.
There are principles, but very few absolutes in employment law. Reasonable people can read the same legislation and the same set of facts and reach different conclusions about whether a dismissal was harsh, unjust or unreasonable. The challenge is not just knowing the law, but understanding how it may be applied when a Commissioner weighs all the circumstances in each case.
The Case
In Raghib v Stantec Australia Pty Ltd, a Senior HR Business Partner found himself on the other side of a workplace investigation after complaints were made about his conduct, including allegations of sexual harassment. The employee denied the sexual harassment allegations, and the Commission was ultimately not satisfied that the alleged sexual harassment itself had occurred. However, what the employee did after learning about the complaints became central to the case.
After becoming aware that a female colleague had made a sexual harassment complaint against him, the HR Business Partner contacted her directly. He later relied on what he claimed was a text message from another complainant, in which she appeared to admit that she had been persuaded to make allegations against him in return for having her employment confirmed. If genuine, that message could have seriously undermined both the complainant’s credibility and the integrity of the disciplinary process.
The complainant denied sending the message and produced telephone records showing that no message had been sent from her phone to the employee’s personal or work phones. The Commission ultimately concluded that the message was fabricated and intended to discredit the complainant and undermine the disciplinary process. It also found that the employee’s direct contact with the woman who had made the sexual harassment complaint was inappropriate.
These were not findings of a minor lapse in judgement. For any employee, fabricating evidence during a workplace process would represent a serious breach of trust. For a senior HR professional who understood investigations, confidentiality and the importance of protecting complainants, the conduct went directly to the integrity required of the role.
Stantec dismissed the employee, who then lodged an unfair dismissal application. Deputy President Ian Masson found that Stantec had valid reasons for dismissal based on the employee’s contact with the sexual harassment complainant and the fabricated text message. However, the Deputy President also identified a significant problem with Stantec’s process: the employee had not been notified of all the reasons ultimately relied upon and had not been given an opportunity to respond to them before the dismissal ie procedural fairness.
Despite those procedural fairness failures, the dismissal was upheld. The Deputy President found that the seriousness of the misconduct outweighed the deficiencies in the dismissal process and rejected the unfair dismissal claim. The employee appealed, but the Full Bench refused permission to appeal, leaving the original decision in place.
The Background
What makes the Stantec decision so useful is that employers do not always receive the same outcome when procedural fairness has not been followed. In other cases, employers have lost an unfair dismissal case because there was lack of procedural fairness.
In Bostock v Austmont Pty Ltd, the employer dismissed a factory foreman who had been absent from work because of a persistent medical condition. The Commission accepted that the employee’s incapacity provided a valid reason for dismissal. However, the employer had not notified him of the proposed reason before dismissing him and had not given him an opportunity to respond. Even though his response may not have changed the employer’s ultimate decision, the absence of procedural fairness contributed to the dismissal being found unfair.
The conduct, context and balance were very different from Stantec. Bostock was not a case involving dishonest evidence or an attempt to undermine a sexual harassment investigation. It concerned an employee’s capacity to perform his role, and the employer made its decision without first involving him in a fair process. In those circumstances, procedural fairness carried considerable weight.
In Stephen Burley v Cleanaway Operations Pty Ltd, a waste collection driver used a mobile phone while operating a heavy vehicle. He admitted the conduct, which was captured on CCTV, and the Commission accepted that Cleanaway had a valid reason for dismissal. However, the dismissal process contained significant procedural deficiencies. The decision records that the employee was reinstated, without an order restoring his lost pay, after the dismissal was found harsh, unjust and unreasonable.
Again, the balance was different. Burley had a long service history, expressed remorse and explained the personal circumstances surrounding the calls, which related to his elderly mother’s health. Material about the proposed dismissal had progressed through senior management before Burley had the opportunity to respond that provided evidence that a decision was made by the company to dismiss before giving the employee the opportunity to respond and to consider his response. In this case the dismissal was deemed harsh and unfair.
These decisions were all made under the same legislative framework, and each employer had a valid reason for dismissal. Yet the outcomes were different because the Commission was required to consider the whole picture. In Stantec, deliberate dishonesty and conduct undermining a sexual harassment process outweighed the procedural deficiencies. In Bostock and Burley, the process failures carried substantially more weight when considered alongside the nature of the reason, the employee’s circumstances and the employer’s decision-making.
How to Do It Better
A dismissal should never be approached on the assumption that procedural fairness can be skipped because the conduct appears serious. That would take the Stantec decision well beyond what it establishes and expose an employer to unnecessary risk.
The safer and more defensible approach is to:
- investigate the concerns properly;
- distinguish allegations from established facts;
- clearly explain the concerns and the possible consequences to the employee;
- provide a genuine opportunity to respond;
- remain open to the possibility that the response may affect the outcome;
- consider relevant personal circumstances, service history and comparable cases;
- involve an appropriate support person if requested; and
- document both the evidence and the reasoning behind the decision.
Employers should also remember that organisational context matters. The Commission is required to consider the size of the business and the presence or absence of dedicated HR expertise because these factors may affect the procedures followed. A small community organisation without internal HR capability may not run a process with the same sophistication as a large employer with an experienced HR team. That does not remove the obligation to act fairly, but it can form part of the Commission’s broader assessment.
The lesson to take away is not that procedural fairness is optional. It is that procedural fairness is part of a balancing exercise. Sometimes a deficient process will be decisive. In more exceptional circumstances, as Stantec demonstrates, misconduct may be so serious that it outweighs the employer’s procedural failures.
The Bloom HR Takeaway
At Bloom HR, we are constantly scanning Fair Work Commission decisions to understand how employment law is being interpreted and applied. The legislation provides the framework, but decisions such as Stantec, Bostock and Burley show how much can depend on the facts, the process followed and the weight a Commissioner gives to each consideration.
Keeping across these decisions helps us give clients practical advice based on how the law is operating today. It allows us to better assess where the boundaries of “harsh”, “unjust” and “unreasonable” are being drawn and to help employers make decisions that are legally sound, fair, reasonable and defensible if later challenged.
No Bloom HR client has ever paid compensation in an unfair dismissal matter. We believe that record reflects the care we take in understanding both the law and how it is being applied, then helping our clients manage the facts and process before a decision is made.
Employers should feel confident managing genuine misconduct, incapacity and performance concerns when there is a sound reason and a fair process. When the circumstances are complex or the right course is unclear, Bloom HR is here to help you weigh the risks, apply good judgement and reach a decision you can stand behind.
You can schedule a free 30 minute consultation and we can help you navigate your complex HR issues.