A fre­quent mis­take employ­ers make when deal­ing with dis­missal, is fail­ing to afford employ­ees pro­ce­dur­al fair­ness”. The unfair dis­missal pro­vi­sions in the Fair Work Act 2009 oper­ate so that as well as an employ­er hav­ing to have a valid rea­son to ter­mi­nate employ­ment (mis­con­duct, poor per­for­mance, etc), they must also (gen­er­al­ly) have fol­lowed a pro­ce­du­ral­ly fair process in reach­ing the deci­sion to terminate*.

This means that employ­ers should ensure that:

  • (gen­er­al­ly) a series of dis­ci­pli­nary meet­ings and warn­ings should pre­cede a deci­sion to dismiss;

  • alle­ga­tions of mis­con­duct against employ­ees are ful­ly investigated;

  • an employ­ee is giv­en an oppor­tu­ni­ty to address the alle­ga­tions against them before a deci­sion on the dis­missal is tak­en (usu­al­ly in a for­mal dis­ci­pli­nary meeting);

  • employ­ees are giv­en ade­quate (writ­ten) notice of any such meet­ing – and the issues to be dis­cussed in the meet­ing — to allow them a chance to prepare;

  • employ­ees are allowed to bring a sup­port per­son to the meeting;

  • the out­come of the meet­ing is not pre-determined.

Whilst it is not always fatal to the defend­ing an unfair dis­missal case if there are errors of pro­ce­dure (par­tic­u­lar­ly in cas­es of very grave mis­con­duct), there are numer­ous exam­ples of employ­ees being held to have been unfair­ly dis­missed due to a fail­ure to pro­vide pro­ce­dur­al fair­ness even where it is clear there has been wrong­do­ing on the part of the employee.

For exam­ple, in Allan Croft v Smarter Insur­ance Bro­kers Pty Ltd [2016] FWC 6859 an employ­ee was held to have been unfair­ly dis­missed where he had not been giv­en an ade­quate oppor­tu­ni­ty to respond to the find­ings against him, even though it was admit­ted that he had been access­ing, down­load­ing and stor­ing porno­graph­ic mate­r­i­al on a work mobile phone and laptop.

Sim­i­lar­ly, in Mr Nir­mal Singh v Aero­care Flight Sup­port Pty Ltd [2016] FWC 6186 an air­port bag­gage han­dler who stat­ed in a Face­book post We all sup­port ISIS” was held to have been unfair­ly dis­missed for rea­sons that includ­ed the employ­er did not ade­quate­ly inves­ti­gate the employ­ee’s claims that his post was sar­cas­tic and that he actu­al­ly was opposed to ISIS.

Whilst ensur­ing that a pro­ce­du­ral­ly fair process is fol­lowed can delay the deci­sion on ter­mi­na­tion (due to the need to under­take an inves­ti­ga­tion and hold dis­ci­pli­nary meet­ings), it is usu­al­ly time well spent. Remem­ber that if an employ­ee is suc­cess­ful in bring­ing an unfair dis­missal claim reme­dies can include an order to rein­state them in their role, as well as finan­cial compensation.

* Not all employ­ees are pro­tect­ed by the unfair dis­missal régime – see the pre­vi­ous arti­cle in this series.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Copy­right and Gen­er­a­tive AI: what Aus­tralia can learn from the Meta and Anthrop­ic Rulings

In 2025, two U.S. court deci­sions, Kadrey v. Meta and Bartz v. Anthrop­ic, have pro­vid­ed the first real judi­cial answers…

Fed­er­al Court Deci­sion Lim­its Effec­tive Use of Set-Off in Con­trac­tu­al Annu­al Salary Arrangements

The Deci­sionIn a recent Fed­er­al Court deci­sion*, Jus­tice Per­ram held that while con­trac­tu­al set-off claus­es in an annu­al salary arrange­ment can…

Pro­tect­ing your tomor­row, today: The impor­tance of an endur­ing pow­er of attorney

We often talk about the impor­tance of draft­ing your estate plan­ning doc­u­ments, includ­ing how draft­ing your will can ensure your…

In the News

Sarah Heuv­el pro­vides insight into get­ting Rent Roll Trans­ac­tions Com­pli­ance Compliant

Sarah Heuv­el in an inter­view with Matthew Cial­lel­la of MC Broking & Advi­so­ry, dis­cuss rent roll trans­ac­tions and the three key…

Michael Byrnes appeared on Mon­ey News with Evan Lucas on 2GB on 8 Sep­tem­ber 2025 to dis­cuss the recent Fed­er­al Court deci­sion relat­ing to salary arrange­ments, set-off claus­es and award compliance

Michael Byrnes appeared on Mon­ey News with Evan Lucas on 2GB on 8 Sep­tem­ber 2025 to dis­cuss the recent Fed­er­al Court…

Michael Byrnes has pub­lished an arti­cle titled Use of AI Crit­i­cised by FWC” in HR Leader on 2 Sep­tem­ber 2025.

Michael Byrnes has pub­lished an arti­cle titled ​“Use of AI Crit­i­cised by FWC” in HR Leader on 2 Sep­tem­ber 2025.To read the…

Sign up for our Newsletter

*Mandatory information