Do Companies Fully Understand the Importance of Procedural Fairness?

A “fair go all round” is a term often heard in Australian industrial practice. It’s a term that refers to an expectation of mutual trust and confidence between employer and employee. Essentially, “a fair go” is an understanding that all will be done in good faith, including disciplinary action if necessary.

Procedural fairness is pertinent to acting in good faith.

Unfortunately, many employers who feel stung by perceived poor performance or improper actions of an employee, forget about procedural fairness. In most cases, management place their focus on trying to resolve the issue with minimal work disruption, sometimes at the expense of good faith.

Why is that bad for business and staff morale?

It is almost impossible for emotions not to permeate disciplinary action. Both the line management and the employee feel aggrieved. During the investigation phase, the employee feels stressed and often fearful, while management feels angered and frequently also let down. These emotions can skew the investigation and overlook procedural fairness.

Other employees who are called in as witnesses might be reluctant and feel pressured to give testimony out of fear of reprisal. This has a very negative effect on workplace productivity. People talk, and if they are insecure, they will speculate. That is human nature, and the outcome is almost always demoralising.

At the end of the disciplinary process, the decision and findings can be challenged and referred to the Fair Work Commission as being unfair. If the outcomes were based on emotion rather than procedural fairness, the company would be admonished, and the decision could be ruled as being harsh, unjust and unreasonable. It can be ordered that the employee be reinstated and re-compensated for lost earnings. Or the company could be instructed to pay a lump sum reparation amount for unfair dismissal.

This type of decision will adversely impact existing staff morale and also may hurt the employer brand.

What is procedural fairness in the workplace?

The cornerstones of procedural fairness are:

1. The employee has to be given details of the issues or allegations against them in detail.
2. The employee must be given the right to respond appropriately.
3. The employee’s response must be given due consideration before a decision is reached.
4. The process must also be substantively fair.

When it comes to terminating employment based on performance management, many considerations must be taken into account before deciding on dismissal. A thorough investigation process is essential to establish if termination is the only fair and appropriate option.

Particularly in the case of employees who have a long tenure with the company, proper performance management must be proved if a dismissal is challenged. There must be a history of poor performance issues that have previously been addressed with warnings and opportunities for the employee to improve. If the performance management process has been overlooked, dismissal for poor performance can be challenging to validate. Procedural performance gaps will lead to overturned dismissals, even if the company thinks that investigations were thorough.

HR managers and staff must drive procedural fairness in the workplace

Line and department managers are experienced in, and focus on, their core skills to ensure productivity, performance and profitability. These core skills rarely include human resources! And that is where many companies go wrong. They leave disciplinary matters up to line and department managers who are personally involved and often emotionally invested in the situation, and therefore biased. This can lead to disastrous long-term effects across the whole organisation.

It is up to HR managers and executives to drive change and compel CEOs to accept the implementation of policy and procedural changes. Direct management must be removed from conducting disciplinary investigations and making final decisions. Although they will obviously be part of these processes, investigations and decisions must be handled by impartial and separate parties.

Depending on the circumstances of the situation, an HR representative who is well versed in employment law and has extensive industry experience can be appointed to manage the investigation process. They must, however, have the ability to remain unbiased and to act in good faith. If the company does not have anyone in HR who is suitably qualified, or if there is the possibility of bias, it will be in the organisation’s best interest to appoint an external consulting service.

Organisations must know how investigations should be conducted

Specific steps must be followed for all disciplinary investigations, irrespective of the allegations or the level of an employee’s seniority within the company. If the investigation stage is poorly conducted and leads to a dismissal, the decision will be easily overturned, whether the employee was in the wrong or not!

Successful workplace investigations require meticulous planning before any processes are initiated. The merits of the situation must be considered. If the need for an investigation is confirmed, an impartial investigator must be appointed. Once the investigation proceeds, confidentiality becomes an undisputed essential. Only those directly involved must be kept updated. Everyone involved, from the complainant to the respondent and any witnesses must be required to keep all information confidential to uphold procedural fairness.

All interviews must be conducted with fairness, discretion and consistency. All interviews have to be objective and impartial, and all participants must be treated with respect. Evidence obtained should be carefully considered and reported in an unbiased, comprehensive report. The report needs to be prepared in close alignment with the company’s policies and processes, code of conduct and comply with legislation.

Conclusion

Keeping on the right side of procedural fairness can be tricky if your organisation lacks the skills, knowledge and experience. Providing HR management with workplace investigation training can only improve best practices, transparency and potential outcomes.

Complex matters and instances that could be prone to bias are best handled by an external investigator to ensure neutrality and independence. At times, this is the only way to maintain a “fair go all round”. iHR Australia is a leading provider of fair, impartial and prompt workplace investigations conducted by senior HR and Employee Relations professionals.