What is Procedural Fairness?
Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome reached. It requires a fair and proper procedure be used when making a decision.
In employment law, affording an employee procedural fairness means that you must give an employee a fair and reasonable opportunity to respond to matters or evidence that you believe may justify terminating their employment. Procedural fairness is sometimes called 'natural justice'.
If you fail to afford an employee procedural fairness before they are dismissed, your business could be exposed to a potential unfair dismissal claim from the employee, and this could occur even if:
- you have a valid reason for dismissing the employee; and
- dismissal is a fair and proportionate response to the problem.
To ensure that you follow procedural fairness when you are considering dismissing an employee, make sure you follow the steps below:
When an employee is not performing:
- Provide the employee with a clear warning (preferably in writing), and in doing so, you should: advise the employee that, unless they improve their conduct or performance, their employment may be at risk; give the employee a reasonable amount of time to improve; and offer the employee training, support or the opportunity to develop their skills.
- Ensure that the employee understands the issues, and the consequences, in sufficient detail.
When you are considering dismissing an employee:
- Provide the employee with a reasonable opportunity to respond to your reasons for wishing to terminate their employment.
- Allow the employee to have a support person present at any meetings concerning their potential dismissal.
- Ensure that you, and any other decision-maker, are unbiased.
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