Procedural fairness in terminations of employment

The termination of the employment of an employee may be regarded as relevantly unfair by the Fair Work Commission even if there is valid reason for the dismissal if the employer did not afford the employee a reasonable opportunity of defending himself or herself against the allegations.

Notification of the valid reason and opportunity to respond – s.387(b) and (c)

[94] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,9 in explicit terms10 and in plain and clear terms.11 In Crozier v Palazzo Corporation Pty Ltd12 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”13

[95] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.14 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.15

[96] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr O’Brien before his dismissal was effected.

[97] On balance, and despite some significant flaws in the process, I am satisfied that Mr O’Brien was notified of a reason for his dismissal and was given an opportunity to respond. The extensive correspondence between the parties, including correspondence between Ventia and Mr O’Brien’s union representatives, supports this view.

[98] However, the process and correspondence outlined above shows it was only with repeated requests that Mr O’Brien was given some basic level of detail about the nature of the allegations made against him. Further, some justifiable criticism can be directed to the investigation process, in which Mr O’Brien was required to participate despite being unfit for work and being required to answer the investigators questions while driving his car.

Passages from O’Brien v Ventia Pty Limited (2021) FWC 5916 delivered 15 September 2021 per Dean DP