Unfair dismissals and procedural fairness

We all know that an employer is bound to comply with what is often called “procedural fairness” when undertaking a process which may lead to the dismissal of an employee, particularly where the reason for dismissal is about performance or conduct. It is often said that there must be a “fair go all round”.

Finnis v Tasmania Ports Corporation Pty Ltd T/A Tasports (2017) FWC 3054 delivered 2 June 2017 per Wells DP was a case in which the Fair Work Commission concluded that a failure by an employer to put all of its allegations and concerns about the performance of an employee who it dismissed to the employee before his dismissal was a “flaw in procedural fairness which was minor”. The facts in that case were essentially that an employee was dismissed because of his role in a significant safety breach, and although he was found by the Commission to have had a reasonable opportunity of addressing that reason with the employer, another concern held by his employer was his alleged lack of insight into the employee’s concerns about this safety performance, which was not put to him and thus he had no opportunity of addressing it. Nevertheless the dismissal was found not to have been relevantly unfair.

Wells DP also quoted the following passage

“In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, per Wilcox CJ, albeit a decision under the Industrial Relations Act 1988, considering the construction and application of s.170DC, the precursor to s.387(c), held that:

“In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243 I discussed the significance of s.170DC. I observed that the section imposed an important limitation on an employer’s power of dismissal. Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly. 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, this is enough to satisfy the requirements of the section.”