Procedural Fairness in Australia’s legal system
Australia’s employment laws provide safeguards intended to protect workers in circumstances that may give rise to the termination of their employment. One such protection afforded to workers is the right to Procedural fairness.
Procedural fairness operates not only in employment law but is a fundamental feature of Australia’s legal culture. It affords individuals an opportunity to respond to allegations made against them. An example of procedural fairness operating in criminal law is the right to a defence when an individual is charged with a crime. Similarly, procedural fairness is evident in civil matters such as where a witness is subject to cross-examination and re-examination.
Procedural Fairness prior to terminating an employee
In Australian employment law, employees who are accused of wrongdoing are entitled to respond to allegations before dismissal. Part 3-2 of the Fair Work Act 2009 (Cth) deals with unfair dismissals. The main criteria for an unfair dismissal claim is that the termination was harsh, unjust or unreasonable. Bryne v Australian Airlines Ltd [1995] HCA 24 provides further guidance around the ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’. It was explained in that case that “a termination may be harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases, these concepts will overlap. Therefore, a termination may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted”.
In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account a range of considerations which include those relating to procedural fairness such as the following:
a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b) Whether the person was notified of that reason; and
c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.
Providing an employee with an opportunity to respond
It is insufficient for an employer to simply receive an employee’s response to allegations. The employer must ensure that the responses are given serious considerations before any decisions to terminate employment is made.
In Crozier v Palazzo Corp Pty Ltd (2000) 98 IR 137 it was found that procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is made to terminate their employment hence allowing them an opportunity to respond. However, it also found that simply notifying employees and giving them an opportunity to respond is insufficient in circumstances where a decision had already been taken to terminate their employment.
Wadey v YMCA Canberra [1996] IRCA 568 further found that the right of an employee to defend against allegations implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. It is insufficient for an employer to simply go through the motions of giving the employee an opportunity to deal with allegations when a firm decision to terminate had already been made and this decision would be adhered to regardless of anything the employee might produce in his or her defence.
The Facts in Deng v Westpac [2018] FWC 7334
The Fair Work Commission found in a recent unfair dismissal case of Deng v Westpac, that a Westpac Mobile Lending Manager, Kefeng Deng, be reinstated to his original position on the basis that he was not afforded procedural fairness into allegations against him. Mr Deng was employed by Westpac Banking Corporation between 2 October 2012 and 15 May 2018. At the time of his termination, he was employed as a Mobile Lending Manager at St George Bank. In breach of Bank policies, he had sent business emails to his personal (unsecured) email address.
On 20 March 2018, he received a letter from Westpac requesting that he attend a disciplinary meeting the following day to address allegations of misconduct that had been made against him. Although this meeting was delayed until 22 March 2018 to allow Mr Deng’s wife to attend as his support person, the disciplinary meeting lasted 5 hours with only two short breaks. Westpac also failed to provide any food, tea or coffee during the meeting.
Following the meeting, Mr Deng received an ‘Intent to Terminate Employment’ letter from Westpac on 1 May 2018. This letter identified eight allegations in detail that Westpac claimed had been substantiated during the meeting, of which one was the allegation that Mr Deng had used his personal email accounts, which are unsecured and unauthorised for work purposes, to send emails to his work email address. Additionally, it was alleged that he had sent work emails to his personal unauthorised email account. Six other allegations were also included in the letter and a response was required by him the following day. Although Mr Deng responded by the deadline, Westpac rejected his explanations and proceeded to terminate his employment on 15 May 2018.
The Decision in Deng v Westpac
The Commission held that Mr Deng was not provided a genuine opportunity to respond and therefore denied procedural fairness. The Commissioner found the second allegation substantiated but the first allegation only partly substantiated. The six other allegations were found to be entirely unsubstantiated. Importantly, the Commission made the following findings:
a) Westpac had a valid reason to terminate Mr Deng’s employment because Mr Deng had breached a reprehensible policy of Westpac.
b) Westpac had notified Mr Deng of the reasons for his dismissal by identifying the eight allegations in its termination letter;
c) The termination is not precluded from being harsh, unjust or unreasonable simply because there was a valid reason for termination and that notification had been provided. Mr Deng was only given 24 hours to respond to a detailed and complexed ‘intent to terminate’ letter. This timeframe is grossly inadequate and procedurally unfair. There was no opportunity for the Applicant to seek advice from a lawyer or an industrial relations specialist;
d) Mr Deng had been summoned to the disciplinary meeting without knowledge of the accusations. He was therefore unprepared and unrepresented but provided answers over an onerous five hours whilst bombarded with 30-40 documents ranging from selected emails to thick corporate policies;
e) Westpac had failed to follow up or corroborate any of Mr Deng’s responses to the allegations. The investigation appeared to be nothing more than opinions of Westpac’s investigators.
f) The decision of Westpac to terminate employment was unjust and unreasonable in that Westpac failed to afford Mr Deng an adequate level of procedural fairness. Requiring a response within 24 hours is not pragmatic and blatantly unfair. It was not feasible for Mr Deng to seek legal advice and provide a response in this timeframe. He was entitled to review all materials (emails, policies and accusations) and seek advice, seek corroborative statements from his customers and provide a considered response. There was a denial of natural justice.
g) The decision to terminate was also harsh in that Mr Deng was otherwise a model and successful employee who was tapped into a new market for Westpac based on his ethnicity and cultural background. The breach of a policy which Mr Deng acknowledges he did not fully comprehend does not warrant termination.
h) Westpac was ordered to reinstate Mr Deng to his former position with continuity of employment and to compensate Mr Deng for 10 of the 24 weeks of lost pay since the time of his termination, with the 14-week reduction due to Mr Deng’s misconduct.
The Implications of Deng v Westpac
As an employer, the case has the following implications for you:
1. Procedural fairness is not a privilege but an entitlement that an employee can demand as of right. Denial of procedural fairness will render a dismissal unfair and leave employers vulnerable to liability.
2. Employees must have an opportunity to respond to allegations, but must also have an opportunity to properly prepare that response, hence necessitating adequate and reasonable timeframes by which responses are to be provided.
3. Responses must be seriously and properly considered by employers before a decision to terminate is made. Employers should follow up and corroborate the employee’s version of events. A failure to do so is an indicator that the employee’s response has been ignored.
4. Harsh conditions of a disciplinary meeting including limited access to food, drinks and breaks over extended periods, may undermine the extent to which procedural fairness has been obtained.
5. Termination cannot be justified if employees do not have a complete comprehension of internal policies. It is the employer’s responsibility to ensure that their employees are aware of their internal policies.
6. Employees are entitled to procedural fairness under Australian Employment law and this includes a right to be genuinely heard before being dismissed.
