When managing staff, it’s easy to focus on the outcome— especially if there’s a clear reason for disciplinary action or dismissal. But in the eyes of the law, how you get to that outcome matters just as much as why. That’s where procedural fairness comes in.
Whether you’re dealing with underperformance, misconduct, or a potential termination, you must ensure the employee is given a fair go: clear communication, a genuine chance to respond, and an impartial process. Even if you believe the decision is justified, skipping steps or rushing through the process can expose your business to legal risk.
In this article, we break down what procedural fairness means, the key elements you need to follow, and what can happen if you get it wrong.
What is Procedural Fairness?
Procedural fairness focuses on the process of decisionmaking rather than the outcome itself. It means employers must follow a fair and proper procedure when responding to allegations around an employee’s performance or actions related to their employment.
Key Elements:
- Notice: Employees must be informed of allegations and provided with evidence against them.
- Opportunity to Respond: Employees must have a reasonable opportunity to respond to the allegations and present their side of the story. When responding to inadequate performance, employees must be provided with a reasonable timeframe, and support, to improve.
- Impartial Decision-Maker: The decision-maker should be unbiased and consider all relevant information before making a decision.
- Clear Procedures: Employers should have clear and well-documented procedures for handling grievances, performance issues, disciplinary matters and terminations.
Examples of Procedural Fairness:
- Following established disciplinary procedures.
- Providing the employee with adequate notice of their requirement to attend a meeting (minimum 24 – 48 hours).
- Providing the employee with a copy of the allegations and evidence.
- Allowing the employee to present their case
- Providing an opportunity for the employee to seek advice or have a support person present during meetings.
Consequences of Failing Procedural Fairness
If procedural fairness has not been followed it may be unlawful to terminate an employee’s employment, even if there was a very good reason for employment to end (including instances which justify instant or summary dismissal). Unlawful termination of employment (even with a good reason) can result in an employee being reinstated in their employment or receiving compensation.
Procedural fairness can be a complex concept to apply. Please contact our Employment Advisory team on 1800 888 479 if you need assistance in understanding how to ensure procedural fairness in your business and in circumstances you face.
