Allegations of misconduct in the workforce are very serious and can be extremely damaging to an individual if these allegations are unfounded or untrue.

That is why Procedural Fairness has been enshrined into the Fair Work Act 2009, giving employees the chance to defend themselves against allegations of wrongdoing in the workplace.

It is also called Natural Justice and should be offered to all employees before a decision is made in regard to the termination of employment to ensure a fair hearing and to minimise the risk of unfair dismissal.

Before having their employment terminated, they should be offered Procedural Fairness procedures that include:

• Having the allegations laid against them provided to the employee
• A reasonable window of time for the employee to respond
• Taking into account the response(s) that the employee gives in response to the allegations and;
• Making a final decision on discipline and penalty (including termination of employment) based on these responses and information provided.

And the employee is also entitled to:

• A fair hearing that is appropriate to the circumstances;
• A hearing that has a lack of bias;
• The right to present evidence to support a decision; and
• A fair inquiry into the matters and allegations that are in dispute.

The rights of an employee when it comes to Procedural Fairness

As an employee, you have several rights under workplace legislation when it comes to Procedural Fairness to give you the best possible opportunity to present your case. If you face allegations of misconduct, termination of employment or other significant disciplinary measures, you have the right to:

1. Know the exact specifics of the allegations and/or complaints that are being levelled against you concerning behaviour issues or performance-related matters.
2. A reasonable period of time to appropriately respond to these allegations, which can include denial, evidence you believe will disprove the allegations, explanations that prove your innocence and any special circumstances that should be taken into consideration.
3. The right to a fair hearing that is free of bias and where personal feelings and history towards the employee are not taken into consideration. The investigation, hearing and final decision should be based solely on the facts presented. The decision-maker should be someone not involved or affected by the investigation, the performance management process or the allegations.
   Things that can be taken into consideration when it comes to the final outcome of the hearing include the employee’s behavioural history, the employee’s history of prior investigations, complaints and outcomes as well as any previous warnings or disciplinary action and how this current complaint relates to past instances and outcomes.
   Things that can NOT be taken into consideration include past interactions with the employer, personal feelings, trust or distrust and any other non-relevant feelings and interactions.
4. The right to a support person present during the hearing and interviews that are there to provide emotional support, to help the employee if they get nervous by providing them with facts and helping them recall the information and to basically assist them through the process and ensure no details are overlooked because of the stress associated with the process.

To ensure that Procedural Fairness is conducted in a way that ensures the employee has all of their rights adhered to and the best possible chance to appeal or deny any disciplinary action, a professional, third-party organisation is the best solution for a non-biased investigation and hearing.

Precise Investigation has experience working in commercial, insurance, government and other organisations conducting investigations and hearing and can ensure the correct outcome is reached for all parties.

For extra support or assistance with your case, please do not hesitate to contact us at contactus@precisestigation.com  or Tel: 03 9564 7303.