How are you ensuring procedural fairness in an investigation?

ELM: We know procedural fairness is a commonly used term in employment law Madelaine, but how would you best describe it if you had to explain it to non-legal or HR people – let’s say those in general management positions?

MADELAINE: Procedural fairness means that a decision maker has to give a “fair go all ‘round” when making decisions that affect another person’s rights. This means that the steps taken and procedures used by a decision maker have to be fair and reasonable, and follow a proper process.  This is a type of natural justice and it is just as important as the decision itself.

ELM: Can you cite a case example where the lack of procedural fairness by an employer caused them to lose a case? What were the brief details of this case and what can readers take away from the example?

MADELAINE: A recent decision – and one that made headlines in Melbourne newspapers – is that of Bonny Walia v Citywide Service Solutions [2016] FWC 7814.  In this case, a garbage truck driver was dismissed from his employment after he was caught urinating in a CBD laneway during his run, and was subsequently reinstated to his position by the Fair Work Commission.

Although the Commission agreed that the driver’s unlawful conduct was a valid reason to terminate his employment, they held that his employer had failed to give adequate procedural fairness in their decision making and that this failure resulted in the dismissal being disproportionate to the misconduct.  You could say that the Commission found that the employer was a “wee bit” harsh!

All jokes aside, the employer in this case followed a comprehensive pre‑dismissal process, which on its face complied with the legislative requirements of the Fair Work Act, including meeting with the employee on two occasions, and permitting him to have a union representative as support. However, the employer failed to consider the driver’s submissions that he was the sole bread winner with a young family, and that he had shown remorse for his actions.

The Fair Work decision illustrates that employers cannot simply take a ‘check the box’ approach to procedural fairness. Employers must take into account the circumstances and attributes of the individual worker as part of procedural fairness. This requires an exercise of judgment in a case by case basis.

ELM: Please provide us with a few key tips to ensure procedural fairness, specifically during a workplace investigation?

MADELAINE: While Fair Work decisions such as Bonny Walia may cause employers to be pessimistic regarding the prospects of defending an unfair dismissal claim we would urge employers not to avoid managing misconduct or undertaking reasonable discipline where appropriate, but to ensure that they provide an employee with procedural fairness.

In relevant cases, a workplace investigation can be an important part of providing procedural fairness to an employee, and establishing that an employer has a valid reason for taking disciplinary action. However, employers must be careful to ensure that the investigation itself uses a fair and proper process, otherwise reliance upon the findings of the report for disciplinary reasons can be problematic.

Whether an employer chooses to use an external investigator or undertakes an investigation internally, they should be careful to ensure that the scope of the investigation is clearly defined, that the findings of the report are based on substantiated facts, and that the report complies with workplace policies and any legislation or legislative instrument which applies to the workplace, such as an Award or Agreement.

ELM: What’s a few reasons you enjoy being part of speaking engagements like this, and what do you hope delegates will take away from the Moray & Agnew presentation this year?

MADELAINE: One of the best things about being an employment lawyer is that truth can be stranger than fiction when it comes to managing people! This year, Moray & Agnew will be discussing some recent cases relating to workplace investigations, which will hopefully be as entertaining to the delegates as it is to me. HR professionals have some great stories and experiences from their working lives, and I would love to hear some anecdotes from our delegates!


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About Madelaine August:

Madelaine has been in practice for over 8 years and is a Senior Associate at Moray & Agnew, specialising in workplace relations law. Madelaine provides legal advice, advocacy and assistance to companies on employment law matters, including disputes under the Fair Work Act 2009 (Cth), contract drafting and negotiation, statutory obligations and equal opportunity laws. She has an excellent understanding of the legal needs of employers and insurers who hold Employment Practices Liability insurance and has represented insureds in the Fair Work Commission, Victorian Human Rights and Equal Opportunity Commission, Federal Court and Federal Circuit Court. Madelaine is a member of Women in Insurance and the Law Institute of Victoria.