Workplace investigations can be stressful for everyone involved. Whether you’re an employer addressing misconduct or an employee responding to allegations, understanding procedural fairness is critical. This legal principle ensures investigations are conducted fairly, transparently, and in line with Australian law. Here’s what both parties need to know to protect rights, uphold responsibilities, and maintain trust.
What Is Procedural Fairness?
Procedural fairness is a legal requirement in the context of workplace disciplinary matters. It ensures that:
- Employees receive a fair chance to respond to allegations.
- Employers make unbiased decisions based on evidence.
For employees, procedural fairness safeguards your right to be heard. For employers, it reduces the risk of legal claims and reputational harm.
These principles are embedded in the Fair Work Act 2009 and reinforced by case law, making them non-negotiable for employers.
Why Procedural Fairness Matters
For Employers, ignoring procedural fairness can lead to:
- Unfair dismissal claims in the Fair Work Commission or the Queensland Industrial Relations Commission.
- Financial loss or reinstatement orders.
- Damaged workplace culture and employee trust.
For Employees, procedural fairness ensures:
- Transparency – you understand the allegations and evidence against you.
- Protection from bias – decisions aren’t based on rumours or personal opinions.
- Opportunity to defend yourself – you can present your side of the story.
Beyond legal obligations, procedural fairness fosters transparency and respect, strengthening employee trust in leadership. It also allows employers to better understand their workplace and workers.
Key Rights and Responsibilities
Employers Must:
- Provide clear details – explain allegations in writing (e.g., what happened, when, and how it breaches policies).
- Appoint an impartial investigator – avoid conflicts of interest and use an unbiased internal party or external expert.
- Allow time to respond – give reasonable notice and allow the employee enough time to prepare a defence.
- Gather evidence fairly – interview witnesses, review documents, and consider all relevant information.
- Maintain confidentiality – limit discussions to those directly involved to protect privacy.
- Document the process – keep records of meetings, evidence, and decisions.
- Communicate outcomes – explain findings and next steps to the employee.
Employees Are Entitled To:
- Clear information – know the specifics of the allegations and any supporting evidence.
- A support person – bring a colleague, union representative, or friend to meetings.
- Sufficient time – prepare a response without being rushed.
- Non-retaliation – raise concerns or defend yourself without fear of victimisation.
- Respect for privacy – confidentiality during and after the investigation.
Case Study: Lessons from the Fair Work Commission
In one recent case, an employee’s dismissal was ruled unfair because the employer failed to provide adequate details of the allegations or consider their response. The employer was ordered to pay compensation, highlighting the cost of procedural missteps.
Takeaway: employers must follow due process, and employees should insist on clarity if allegations are unclear.
How Miller Harris Lawyers Can Help
Navigating workplace investigations requires expertise in employment law, procedural rigor, and a commitment to fairness. We assist employers and employees in navigating workplace investigations:
- Employers: We help you manage underperforming or misbehaving employees, conduct impartial investigations, draft policies, and defend against claims.
- Employees: We advise on rights, review processes for fairness, and represent you in disputes.
Final Thoughts
Procedural fairness isn’t just a legal requirement—it’s a safeguard for both employers and employees. By prioritising transparency, objectivity, and respect, businesses can resolve workplace issues effectively while upholding their legal and ethical obligations.
Need Expert Guidance? Contact Miller Harris Lawyers today to ensure your workplace investigations are fair, compliant, and defensible. Let us help you protect your business and your people.
This blog provides general information and does not constitute legal advice. Consult a qualified lawyer for tailored guidance.