Procedural fairness (or ‘natural justice’ as it is otherwise known) has ancient origins, dating back to the Greek philosopher, Plato and Roman philosopher, Seneca.1 It applies in situations where there is a decision to be made which could have an adverse outcome on the rights, interests or legitimate expectations of a person. Historically this concept applied to formal legal decision-making processes, but these principles also apply to administrative decision-making processes carried out by government officials and agencies and have spread into all applications of employee related decisions including the application of the Fair Work Act and Work Health and Safety Legislation. Procedural fairness is observed for individuals and organisations in all levels of government complaint management being observed in commissions of inquiry and Ombudsman investigations.
Since the House of Lords decision in Ridge v Baldwin,2 a case concerning the decision of a police authority to dismiss an employee, common law jurisdictions accepted that principles of procedural fairness apply to government decisions affecting employment.
In Australia it has become standard best practice to apply principles of procedural fairness to workplace investigations into employee misconduct, particularly where a likely outcome of the process is dismissal or demotion of the employee.3
In Lohse v Arthur, the Court described procedural fairness as a flexible and practical obligation to adopt fair procedures appropriate to and adapted to the circumstances of the case – in essence this means that the employee under investigation be given a ‘fair go‘.
In practice procedurally fair workplace investigations reflect the following principles (which are discussed in detail in the following Part):
1. A fair hearing
2. Independent and unbiased decision makers
3. A decision based on evidence
Indeed, the FWA stipulates that for those organizations covered by the FWA, 4 when considering whether dismissals are unfair, the concept of a ‘fair go all round’ is a paramount consideration.5 Under section 387 of the FWA, some of the criteria to be taken into account in determining whether a dismissal was harsh, unjust or unreasonable reflect common law principles of procedural fairness, thereby underscoring the importance of these principles.
How to implement the principles of procedural fairness in your workplace practices and investigation procedures is explained in detail during our investigation training courses. Visit our website for more information here
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AUTHOR: Alison Page, Legal Council | WISE Workplace
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1 See Creyke, Robin and McMillan, John. 2009. Control of Government Action Text, Cases and Commentary Second Edition, Lexis Nexis Butterworths pages 683, 689 citing Callinan J in Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam (2003) 214 CLR 1
2 [1964] AC 40
3 See for example Jarratt v Commissioner for Police [2005] HCA 50
4 According to the Federal Government website, https://www.fairwork.gov.au/ most Australian workplaces are covered by the FWA. Those that aren’t are covered by their state system. Those not covered include:
- employees employed by state government and local governments (unless their employer has a registered agreement in the national system)
- many employees employed in Western Australia.
5 See FWA section 381(2) which refers to Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR(NSW) 95
