While many are aware of what constitutes poor performance or misconduct, which can ultimately lead to disciplinary action up to and including the termination of employment, the notion of procedural fairness is not as commonly understood.

In essence, procedural fairness is all about ensuring employees are treated fairly during any disciplinary or termination process. Specifically, this includes:

• making the employee precisely aware of the issue that has resulted in them being disciplined


• giving the employee an adequate opportunity to respond to the issue before a final decision is made (eg, before termination is confirmed)


• providing warnings—this is particularly pertinent if the employee is being disciplined for the first time and the issue does not constitute serious misconduct (which may result in summary dismissal)


• allowing the employee to have a support person present at any disciplinary meeting (especially any meeting where termination is confirmed)—a support person cannot be a lawyer and should only act in a support capacity (ie, they are there to provide emotional support, take notes and request the meeting be adjourned if absolutely necessary).

What if procedural fairness is not provided?

Where procedural fairness is not provided, the employer leaves themselves open to greater legal risk.

Specifically, in unfair dismissal matters (which are the most common end-of-employment claims), the Fair Work Commission directly assesses the level of procedural fairness provided to the applicant (former employee) during any disciplinary process relevant to the termination of employment, and the termination process itself.

Even if there is a substantive reason for dismissal (ie, the reason for the termination was valid), if the employer does not ensure procedural fairness, it is likely that the Fair Work Commission would consider the termination to be unfair and the employer would likely be required to pay compensation to the applicant.

In practice, what does procedural fairness look like?

To use an example, say an employee has been underperforming in their role. The first step here is to promptly organise a meeting with the employee to raise the performance concerns. The employer should give as much detail as reasonably possible.

The employee should then be given the opportunity to respond to the concerns before a performance improvement plan is jointly devised and agreed to, which ideally will facilitate improved performance.

If the performance issues continue, the employer should then organise a second meeting with the employee where the lack of improvement is acknowledged and a written warning is provided.

The employer should again work with the employee to develop a plan to facilitate improvement.

There should also be a follow-up meeting in around one month’s time to assess how the employee is tracking against the agreed performance improvement plan.

Keep in mind that if the employee’s performance deteriorates quickly (which can happen), this meeting can be brought forward.

If, by the time of the follow-up meeting, the employee’s performance has not improved, that meeting should be used to provide another warning, which can possibly be a final warning depending on the severity of the performance issues.

Here, the employer is making it clear that no improvement in performance may result in the termination of employment. A support person is encouraged in a meeting of this nature.

Finally, if the employee’s performance does not improve after the issuing of a final warning, the employer should formally allow the employee a final chance to respond before a decision regarding whether to terminate employment is made.

This could either be in a meeting or in writing through a show cause letter.

Depending on the employee’s response, if the employer is not satisfied and does not believe the employee is going to improve, a meeting must be organised where termination of employment is confirmed.

The employee should be given the choice to have a support person in this meeting. Termination must be confirmed in writing, so the best way to do this is to provide a termination letter to the employee in this meeting.

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