Procedural fairness wins out again

Organisation’s keep making the same mistakes.

A recent decision of the Fair Work Commission (FWC) again highlighted the need for proper procedure. The case involved the termination of a Work, Health and Safety Officer (WHSO) after sending threatening texts to a manager, conducting business in contravention of his contract and underperformance.

This was another case in the FWC where the dismissal was deemed valid, but the termination was deemed procedurally unfair.

Read the case here.

In short, the employee was accused of sending his manager two offensive texts messages from a pay phone, over a period of about a month. The employer hired a private investigator who found (on the requisite standard of proof) that it was the employee who sent them. After being called to a meeting, the employee was told of the allegations and then summarily dismissed immediately. He denied any wrongdoing.

The employee did also have some performance matters included in his termination, along with contract breach incidents where he had dealings with a rival company.

Organisations must ensure that their processes are procedurally fair, even in the case of serious matters that may warrant termination. Typically, performance matters are often rolled up into termination, but without any formal evidence of performance and conduct management. Getting advice is critical.

Here’s a simple breakdown of the basic considerations:

  • Performance manage employees who are not performing
  • Conduct manage employees who cause disruption, are toxic, go against organisational values or are some other way breaching codes of conduct

And remember, performance and conduct are two different things! They need to be treated and managed separately.

If there is to be a formal evidence-based complaint investigation:

  • Give employees adequate written notice of any meeting and ensure they have support with them (if they want it). Also ensure they are psychologically supported.
  • Let the employee know the allegations and the evidence. Give them adequate time to respond
  • Consider their response and the circumstances in making a decision (this requires time)
  • Communicate the decision to them and also consider their response

In the end, procedural fairness boils down to three main factors (also acknowledging that there are other considerations). Employees must

  1. Have the right to know
  2. Have the right to be heard
  3. Have the right for decisions to be made only on the evidence

Time and time again the FWC Commission overturns dismissals because of these basic procedures not being adhered to. Whilst the compensation can be minimal (in this case it was one week’s pay), the flow-on effect for these matters can be significant lost time, financial implications (legal and other fees) and organizational culture.

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