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A recent NSW Supreme Court decision highlights the importance of ensuring procedural fairness is afforded to employees throughout the entire workplace investigation and discipline process.

In this case the employer arguably had a genuine reason for terminating the employee’s employment if it could be established, after proper investigation, that the sexual harassment allegedly engaged in by the employee amounted to serious misconduct.

However, in the absence of the employer having a valid performance or behaviour based reason to terminate the employee’s employment, the employment would be considered to have been terminated for “no cause” pursuant to the employee’s contract of employment, entitling the employee to six months’ pay in lieu of notice and bonuses.

Due process requires that an accused be given the opportunity to respond to allegations before a decision is made adverse to the accused’s interest.

In this case the evidence established that the employer failed to afford the employee due process in that it had determined his guilt prior to the employee responding to the allegations. The appearance of due process was a facade which the court looked behind to reveal the reality.

The employer being unable to rely serious misconduct as the reason for termination was left with the reason being “no cause”, entitling the employee to six months’ pay in lieu of notice and bonuses totaling $1.4 million.

This is a mistake that is commonly made by employers, and the lesson is always the same… don’t pre-empt the workplace investigation… no pre-dated letters of termination… no emails between business partners to the effect of “I’ve had it with this person, just go through the process and get rid of them…”, etc.

Fortunately, with a bit of planning this common mistake can easily be avoided.

If you’re an employer and unsure of what’s required to follow due process, don’t hesitate to contact our Employment Law Team.

See Also: Workplace Investigations: Internal vs External


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