Unfair dismissal; procedural fairness

Best practice in human resources and employee relations requires that an employee whose continued employment is under scrutiny by an employer should be confronted with the employer’s concerns about the employee’s performance or capacity and provided with an adequate opportunity to confront the concerns and have a reasonable opportunity to answer them. However as is evident in the following extract from a recent unfair dismissal decision, this is not a rule cast in stone and can be modified depending upon the circumstances.

“(b) Whether the person was notified of the reason

The reason for termination should be notified to an employee before the termination occurs. Whilst it is true that the Respondent did not explain to the Applicant at the meeting where he was advised of his termination, or in the letter of termination, the full extent of the reasons the Respondent relied upon for the purposes of the hearing in the Commission, I am satisfied that the Applicant was made sufficiently aware of the nature of the issues that had been being raised with him over a period of time for the consideration in section 387(b) not to weigh in favour of the dismissal being unfair.

This includes four occasions where performance issues were raised with the Applicant, including in May, 5 July, 19 July and 12 August 2021. The evidence supports the conclusion that the nature of the issues raised at these discussions was consistent with the complaints being received by the Respondent, and therefore the Applicant was not notice of these matters.”

McDougall v Skyfield Homes Pty Ltd (2022) FWC 523 delivered 9 March 2022 per Simpson C