Your current or former employer must follow a fair and reasonable process.
 

If an employer's decision to dismiss is challenged, the onus rests on the employer to justify the dismissal. In doing so, the employer must satisfy two primary requirements.

First, the employer must show that it was substantively justified in reaching its decision.

Second, it must establish that it carried out the dismissal in a procedurally fair manner.

For a dismissal to be substantively justified a range of reasons may be relied upon. These include:

• Poor performance
• Serious misconduct
• Misconduct after warnings
• Redundancy
• Medical grounds
• Abandonment of employment

The above reasons are the most common but it must be stressed that it is by no means an exhaustive list. Less common reasons such as incompatibility and workplace bullying.

Before reaching a decision as to whether there is sufficient justification to terminate an employee's employment the employer must ensure it follows a fair process. The requirements of procedural fairness are largely directed at ensuring the right decision is made.

The process depend on the circumstances. For example, the process adopted in a redundancy situation (where the employee is not at fault) will be different to the process adopted where the employer has concerns about serious misconduct. However in all cases good faith is a critical component.

First, the employer must ensure that before any decision is made that will impact upon an employee's ongoing employment it conducts a full and fair investigation into the facts.

As part of that investigation the employer must give the employee a full opportunity to have input into the decision. This will usually be by way of a meeting in which the employee is given the employer's initial findings and then given an opportunity to respond.

In order to have an adequate opportunity to respond, the employee must be given as much information as possible. In a misconduct situation this is likely to include details of the allegations and what other witnesses have observed.

An employer must also give the employee an opportunity to be represented and advised. To that end, the employee must be made aware that his or her employment is at risk. They must also be advised that he or she is entitled to be represented at any meeting which places their employment at risk.

Employees must be treated equally. So, where similar acts of misconduct have occurred in the past then the employer's response should be consistent.

Finally, the employer's decision should not be predetermined nor biased. For example an employer can not provide you with a pre drafted letter before seeking your side of events. Only once the employer has collected all relevant information should a decision be made and it is only then that the consequences of termination should flow.

I R Thompson Associates strongly recommend that you are represented in any disciplinary meeting or investigation meeting, this will ensure a fair and reasonable process

This information is not a substitute for legal advice and we recommend that you visit or call before acting on material you have read.