Q&A: Giving a preliminary disciplinary decision - Employment Law Update January

We have been accused of breaching procedural fairness obligations because we did not provide a preliminary dismissal decision and allow an employee to comment on that proposed outcome before giving a final decision of dismissal. We thought we had done the process correctly and fairly. We had told the employee from the outset that dismissal was a potential outcome of the investigation since we were investigating alleged serious misconduct. We just did not have an extra step of advising the employee of a preliminary decision to dismiss and seek his comment on that proposed outcome. Are we required to have this additional procedural step?

First of all, you need to check whether this procedural step is part of your employment agreement or policies. If so, you need to have followed it. Secondly, if you had earlier advised the employee you would take this step of giving the opportunity to comment on the proposed disciplinary outcome, then this would be another reason you would need to have adhered to that commitment. Otherwise, the extra step to provide an employee with an opportunity to comment on the proposed disciplinary outcome is an ideal process, but the Courts have tended to treat it as more of a soft procedural fairness step, rather than a black and white one which is always required. This leniency only exists, of course, if you had already made the employee aware that dismissal was a potential outcome earlier on in the process before receiving the employee’s explanation to the allegations. You have indicated that you have done this.

Procedural fairness requires you to provide the employee with full disclosure of the allegations, all supporting relevant information/evidence, a fair opportunity to respond to the allegations, with the opportunity to do so with representation if the employee wishes, place the employee on clear notice of the potential sanction (ie if dismissal is possible the employee should be notified of this before obtaining a response from the employee) and the employer must fully and fairly investigate the allegations and the employee’s explanation before coming to a decision. It sounds like you made the employee aware of dismissal being a potential outcome at the beginning of the process. Therefore, if your substantive reason for dismissal is so