In Australian employment law, one of the most fundamental principles underpinning a fair dismissal process is the employee’s right to respond to allegations before any final decision to terminate their employment is made.
This principle is not only best practice for all supervisors and managers, it is enshrined in legislation. Section 387 of the Fair Work Act 2009 outlines the criteria for considering whether a dismissal was harsh, unjust or unreasonable, and central to this assessment is whether the employee was given an opportunity to respond to any reason related to their capacity or conduct that may justify dismissal (Fair Work Act 2009, s.387(c)).
Why the Right to Respond Matters
Giving an employee the chance to respond reflects the basic tenets of procedural fairness, also alternatively known as natural justice. It acknowledges the right of individuals to be heard and ensures decisions are made based on all relevant facts rather than assumptions or incomplete information. In cases involving conduct or performance concerns, it is possible that the employer has misunderstood the situation, or that mitigating circumstances exist which should be taken into account before deciding to end employment.
The Fair Work Commission (FWC) has for a long time reinforced the importance of this step. In Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage & Transport, the Full Bench stated, amongst other things, that procedural fairness requires that an employee be warned about unsatisfactory performance and given an opportunity to respond before dismissal (FWC, 2001).
Section 387 and Procedural Fairness
The Fair Work Act 2009 requires the FWC to consider several factors when determining whether a dismissal was fair, including:
- Whether there was a valid reason for the dismissal (s.387(a))
- Whether the employee was notified of that reason (s.387(b))
- Whether the employee was given an opportunity to respond (s.387(c))
Failure to provide an opportunity to respond may result in a dismissal being found unfair, even where a valid reason exists. The rationale is simple: if an employee is not allowed to tell their side of the story, the decision maker cannot be confident that the decision to dismiss is justified, appropriate, or proportionate.
A Practical and Ethical Imperative
From a practical management perspective, allowing the employee to respond may assist in resolving misunderstandings or lead to alternative outcomes such as training, redeployment, or performance improvement plans. Ethically, it demonstrates respect for the dignity of the individual and supports a culture of transparency and fairness in the workplace. Sometimes, even after a somewhat thorough investigation, new facts can emerge from the employee in question.
Even where the outcome may still be termination, the process followed can influence whether a dismissal is considered fair. There area a myriad number of cases where employees have clearly been terminated for valid reasons but have been reinstated or compensated due to simply not being asked to give their view before the termination decision was made and communicated.
Supervisors Fear of Hearing Something That Might Change the Outcome
In some cases, supervisors or managers hesitate to give an employee the opportunity to respond before termination out of fear that the employee might say something that complicates or challenges the decision. This fear, while understandable, is misplaced.
It is natural for an employee facing possible dismissal to present reasons why they believe termination is unwarranted. However, allowing the employee to respond does not mean the termination cannot still proceed. It simply means that all relevant information, especially any mitigating circumstance, has been fairly considered before the final decision is made.
The right to respond is far more than a procedural formality. It is a critical safeguard for both the employee and the employer. Respecting this right ensures the dismissal process is fair, legally sound, and defensible. It also serves as a final checkpoint to confirm that the decision to terminate is based on complete and accurate information.
📩 Contact Linq HR today to explore tailored support for your employee relations and workplace management.
🌐 Visit: www.linqhr.com
📞 Call: 1300234566
References
Fair Work Act 2009 (Cth), s.387
Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage & Transport [2001] AIRC 377.
Fair Work Commission (2024) Unfair dismissal – criteria for harshness. Available at: https://www.fwc.gov.au/benchbook/unfair-dismissals-benchbook
