Posts: harsh

Under the Fair Work Act 2009 (Cth), whether an employee’s dismissal was procedurally fair is a key factor in determining whether the dismissal was unfair. Procedural fairness requires an employee be given an opportunity to respond to or explain an allegation put to them by their employer. The employer must consider that response or explanation before deciding the disciplinary penalty – eg: a warning, or termination of employment.

Employers often see the disciplinary process as an opportunity to raise every single indiscretion by an employee – even though the issues occurred in the past or are minor in nature when compared to other misconduct. However, this approach can weaken the employer’s position, rather than strengthen the decision to dismiss.

An employer’s past job advertisements, which stated a preference for “Asian staff”, have been used by the Fair Work Commission (FWC) to support its finding that an employee was dismissed because she was not of Chinese descent.