Employers are botching procedural fairness requirements when it comes to providing employees an opportunity to respond to allegations before they're dismissed, legal experts say.
This is one of the key failings that cause an otherwise valid termination to be ruled unfair, says HWL Ebsworth partner Brad Swebeck in an HR Daily Premium webcast presented jointly with associate Lily Schafer-Gardiner.
"Sometimes people feel a bit rushed, and you want to get the decisions done. [But] it is so important to make sure you follow procedures, because [in] the Commission, even if it finds that there was a valid reason, you'll fall over on the procedural grounds," he says.
"Make sure you give the employee a proper opportunity to respond, and make sure it's recorded."
This can link in with a show cause letter, which helps to later demonstrate the employee was afforded an opportunity to respond either in a meeting or in writing.
"Our preference of course is a meeting with a support person present, but if that can't happen, you can do it by way of email."
Dismissal decisions 'fall apart' without fairness
The importance of providing an opportunity to respond was illustrated in a recent case involving an employee and employer that couldn't agree on working hours, Swebeck says.
The employee was ultimately put "on notice" via email because she refused to sign a new employment contract with altered hours.
The Fair Work Commission found the employer failed to provide the employee with an opportunity to respond, and also failed to allow her to obtain a support person.
"This just clearly fell apart on the procedural fairness grounds," Swebeck says, and the employee was awarded compensation.
Reinstatement 'won't go away'
Reinstatement is the primary remedy in unfair dismissal cases and employers can't buy their way out of such determinations, Swebeck warns.
"If the Commission can find a way to reinstate, it will. You can't buy your way out of it. If [the employee] is very keen to get their job back, that's what they'll want and that's what they'll seek, and it won't matter how much money you put on the table for it to go away. It won't.
"That's something to think about before you make that decision and hit the 'fire' button. The employee could be reinstated, and it might be months down the track."
Reinstatement is sometimes also accompanied with an added penalty that sees the employee paid from the date of dismissal until the date of reinstatement, Swebeck says, describing it as a "double whammy hit".
"You might not like it. You can always appeal, but good luck with that. Not many decisions will be overturned on appeal."
The full webcast discusses recent FWC rulings involving misconduct, poor performance, and more, along with their lessons and ramifications for future claims (upgrade here for access if you're not a premium member).