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What are the general rules of procedural fairness?

Every business has at least one decision-maker. They are the ones who are responsible for all decisions made around employees, which can have favourable results and not-so-favourable results.

These can be centred around promotions, placing workers in teams, promoting the right people for positions, and identifying employees who might be struggling and placing them into alternative roles that would suit them better.

They also include the more serious outcomes, like disciplinary action taken against employees, which can mean anything from a written or verbal warning to termination of employment.

Procedural fairness is all about the steps and process undertaken to reach these disciplinary outcomes, to protect workers and ensure they are being treated fairly throughout these processes.

There are five major rules that the decision-makers must adhere to, which include:

Employees have a right to transparency throughout the process

From the very first moment that a staff member is being investigated, they have the right to be notified. These actions cannot happen behind closed doors – the employee must be informed that there is a complaint against them, and the nature of what the complaint is.

There are exceptions to this rule – for example, whether there is a safety risk involved in telling the staff member, a chance that someone could feel intimidated, where the matter is highly sensitive and more investigation is required, or cases where there is a possibility that evidence could be destroyed.

They have a right to be heard

No decision can be made without the staff member in question having an opportunity to respond when they’ve had an allegation or complaint levelled against them.

They must also be allowed sufficient time to prepare their response based on the seriousness of the allegations, and the number of different complaints that might have been raised. The staff member should be afforded an interview setting to provide their version of events, which management should receive with an open mind.

The right to have the decision based on the evidence

All personal feelings and history with this particular staff member must be set aside. An outcome can only be made based on the evidence presented.

Any previous interactions should not be considered. This can work two ways – the manager and the employee may have enjoyed a favourable relationship before this complaint, making the manager more lenient. Alternatively, perhaps there were personality clashes in the past that could influence the process. All of these past interactions are to be dismissed, and only the evidence presented used to come to a final, fair outcome.

The right to a decision-maker who is fair and unbiased

Further to the previous point, the decision-maker deciding the final outcome should not be affected by previous interactions of personal feelings. The staff member who has had the complaint made against them has the right to someone who will reach an impartial outcome, based on the evidence presented.

The right to a support person

This person is primarily there to provide emotional support to the employee with the complaint or allegations made against them. These support people are allowed to ask the interviewer questions, and also speak on behalf of the staff member.

Management is allowed to have a say in whom this support is. There could be a conflict of interest if this support is also a witness or a co-respondent. The support person must be an adult, and they can also be rejected if they are deemed unsuitable.

Failure to give an employee any of these rights may lead to them successfully lodging an unfair dismissal action with the Fair Work Commission.

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