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Procedural fairness – irrespective of the size of a business

Posted on : Wednesday, 9 May 2018

A recent decision of the Fair Work Commission (FWC) demonstrates the importance of providing procedural fairness in a range of matters, but in this instance in dealing with the dismissal of an employee.


It matters not whether a business is large or small, procedural fairness needs to be both recognised and applied. The consequences of a failure to apply procedural fairness can be high and can include compensation, which in this case amounted to $19,831.73 (gross).


The FWC stated in its decision that the absence of a dedicated HR resource had impacted upon the procedures that were applied by the company. It is important to not just wait until something happens, but to consider an investment in establishing and maintaining that support base, such as through the Workplace Relations service available to Fire Protection Association Australia members.


The case


In a case dealing with a small travel company, the Full Bench of the FWC on appeal upheld an earlier decision that the dismissal of an employee who was unable to attend work due to a pregnancy-related medical condition and alleged poor performance was unfair.


The employee had been employed for three years and four months and was dismissed for the above reasons and given three weeks' pay in lieu of notice.

The FWC at first instance found that:


  • The company had not complied with the Small Business Fair Dismissal Code;
  • In considering the provisions of the Fair Work Act, that there no valid reason for the dismissal - that the employee had refused to do work as instructed, had not been made out on the evidence;
  • The employee had not been notified of the reason for the dismissal;
  • The employee had not been given an opportunity to respond;
  • There were no warnings about unsatisfactory performance; and
  • Being terminated at the beginning of her pregnancy had impacted upon the employee's ability to find alternate work in the nine months before she would otherwise be confined.


The FWC also found that reinstatement was not appropriate and that the company should pay the person compensation ($19,831.73 - gross).

On appeal, the company argued that:


  • There had been serious performance and behavioural issues at work;
  • The person had been warned;
  • That even if the employee had not been dismissed, she would have been made redundant approximately four weeks later; and
  • The amount of compensation was 'absolutely not fair'.


However, the Full Bench considered that the appeal was a re-run of the submissions at first instance. The Full Bench also considered that there were no matters before it that indicated that the Commissioner had erred. There was no significant error of fact nor were any errors pointed to by the company. The appeal was "in essence, a complaint about the result".


A summary of this decision can be found on the Workplace Relations document library.