Breaker Morant reputedly said “We caught them and we shot them under Rule 303”. The worst thing an employer can do is make a snap decision to terminate employment. This is particularly the case where no procedural fairness is given and the employer is personally involved in the case. The message is twofold.
Decision makers should not be personally involved
Firstly, employers should not be complainant, judge, jury and executioner – the decision to terminate employment should be as objective as possible. Ideally, someone in the company who is not involved in any previous process or the facts of a matter which may lead to the dismissal of an employee should be appointed as an impartial and sole decision maker. This is not possible where the decision maker is personally involved in the facts of the case. In Skei Batton v The Environment Centre NT Inc [2024] FWC 597, the executive director (effectively the CEO) of a small not for profit organisation took issue with the finance manager’s conduct towards them. The director sent the employee a “notice of warning and investigation” letter. The director subsequently dismissed the employee for misconduct that included “yelling and swearing” at the director and refusing to follow the director’s lawful and reasonable directions. The Fair Work Commission found the employer had a valid reason for termination but the lack of procedural fairness meant the termination was harsh. As both a witness and complainant, the director should not have conducted the investigation or made the decision to terminate. In this case, the investigation should have been undertaken by an independent third party or a board member and the decision to terminate should have been made by the board.
Another example is Rebecca Callow v M People (Qld) Pty Ltd [2025] FWC 2031. In that case, Ms Callow was dismissed for sending an email about a fundraiser which, by mistake, included all the recipients’ names by carbon copy (cc) thereby breaching privacy and confidentiality policies. The employer’s project manager was responsible for the fundraiser but left the applicant to handle it and did not respond to requests for guidance. The Fair Work Commission noted unchallenged evidence that the employer’s head of people and culture had previously sent similar emails with addresses visible to all recipients which included sensitive health information and private employment details. The employer had taken no action in these instances. The Fair Work Commission noted that the email in this case did not include sensitive information. There was also conflicting evidence about who had made the decision to dismiss. The Fair Work Commission found the employee’s superior, the project manager, was unfairly involved in the investigation and the decision to terminate employment when he had a significant conflict of interest. This resulted in procedural unfairness. The Fair Work Commission said that it is important for employers to, as much as possible, ensure that those involved directly in the facts of the matter remain separate to the decision-making process in relation to an employee’s termination. The result was that the employee in this case was reinstated.
Avoid “kneejerk” dismissals
This issue is of most concern in relation to conduct based dismissals. What happens is that the employer representative practically is so incensed by what has occurred that they rush to judgment without stepping back and taking a moment consider the bigger picture. Is it really necessary to terminate employment straight away? Employers should avoid “kneejerk” dismissals. For example, see Michael Lyle Jones v Karisma Joinery Pty Ltd [2020] FWC 5051 where the Fair Work Commission reminded employers that even difficult workers are entitled to natural justice, awarding compensation to an employee summarily sacked by email after repeatedly abusing his manager. It is best to take appropriate time to make a decision about termination and not make any hasty decisions which might have adverse consequences, such as an unfair dismissal claim or worse. Yes, this is sometimes practically difficult in small business where the owner is the boss. In these cases, employers need to do their best to ensure their decision is based on objectively reasonable grounds and seek expert counsel before making decisions.
The basics of procedural fairness
Procedural fairness means being given a fair and reasonable opportunity to be heard before a decision is made. The basics of procedural fairness involve:
- allegations or issues being put to an employee in sufficient detail;
- the employee being allowed to respond appropriately; and
- any response being taken into account before a decision is made about termination.
It is important for employers to provide employees with procedural fairness, particularly in deciding whether to terminate employment, because:
- it’s the right thing to do, reflects management best practice and helps foster a positive workplace culture;
- it makes for better decisions;
- it helps in avoiding a perception of bias or unfairness in decision making;
- it is a key element in defending termination based legal claims.
Please contact us if you would like any further information or help.