Unfair Dismissal: Procedural Fairness Requirement
Unfair Dismissal: Procedural Fairness Requirement
Unfair dismissal is dismissal which is harsh, unreasonable or unjust. The employee from the date of termination has 21 days to lodge the application with NSW Fair Work Commission.
Due Process
An important aspect of the Australian legal system is due process or natural justice. In the context of employment law, employers need to tell employees what it is they have done wrong and provide evidence accordingly. Until the employee has been afforded the aforementioned due process, they cannot be expected to respond to any alleged breach.
Example: Legal Advice
One example of a company failing to follow natural justice by the denial of procedural fairness was Mealey v Council of the City of Sydney. The employer did not move the date of the meeting with the employee. The employee had requested additional time so as to obtain legal advice. This was denied by the employer. Therefore, the Commission found that the employee was denied the opportunity to be heard.
Practical Injustice
However, the Commission will not always find procedural fairness to be a sufficient reason to give rise to unfair dismissal. In the case of Ittyerah v Coles Supermarkets, the employee tried to argue that the Fair Work Commission denied him procedural fairness. However, the Court simply reiterated that procedural fairness exists to prevent practical injustice. The employee had failed to connect the dots and demonstrate what practical injustice he had suffered.
Requirements for a Warning
The standard details in a warning are, amongst other things the nature of the unsatisfactory conduct, the expectations for future conduct, details, and reasoning. A warning is not a mandatory requirement predicating dismissal but rather it depends upon the type of breach that occurred. However, if the employer has issued a warning or repeat warnings, then the Fair Work Commission will take this into account during an unfair dismissal claim.
Unfair Dismissal: Show Cause Meeting
One mechanism natural justice is a show cause meeting. This is a meeting designed to be free from perceived bias and generally provides the employee with the opportunity to defend themselves and dispute whether they acted unprofessionally or breached their employment agreement.
