What is “Procedural Fairness”?
Under the Fair Work Act, employers aren’t just required to have a reason for dismissal. They’re also required to handle the dismissal fairly. That means you’re entitled to procedural fairness — not just a paper trail that looks official, but a real opportunity to defend yourself before any decision is made. Too many employers get this wrong. And too many employees don’t realise until it’s too late.
At its core, procedural fairness is about process. It’s not about whether the employer liked you. It’s about whether they gave you a fair chance to respond to the allegations that ultimately led to your dismissal.
The Fair Work Commission will typically assess whether the employer:
Clearly told you what you were accused of
Gave you a meaningful chance to respond
Genuinely considered your explanation
Allowed a support person, if requested
Delayed any decision until after that process was complete
This applies even where the reason for dismissal was valid. If the process was flawed, the dismissal may still be found unfair.
Where Employers Commonly Fail
Even experienced HR teams fall into bad habits that strip the process of fairness. Some of the most common failures include:
1. Springing Allegations Without Notice
You’re called into a meeting with no explanation, only to be confronted with accusations on the spot. This deprives you of the chance to prepare or bring a support person.
2. Asking for a Response, Then Ignoring It
Some employers let you “have your say” but make no effort to investigate what you told them. In unfair dismissal law, the employer must actually consider your response — not just listen to it as a formality.
3. Pre-determined Outcomes
The Fair Work Commission regularly finds dismissals unfair where the employer had already made up its mind before the process began.
4. Not Providing Full Details
You can’t respond to what you don’t know. If the employer withholds evidence, fails to specify dates or incidents, or provides vague accusations (“lack of teamwork” or “poor attitude”) without examples, that undermines your ability to defend yourself.
5. Denying a Support Person
If you ask for a support person and are refused, that alone can tilt the balance. The law doesn’t require an employer to offer one — but it must not unreasonably refuse your request if you make one.
What Procedural Fairness Looks Like in Practice
Here’s how a fair process should unfold:
You’re informed in writing of the concerns or allegations.
You're invited to respond in writing or in a meeting, with the opportunity to bring a support person.
The employer waits and genuinely considers your explanation.
If dismissal is on the table, a show-cause letter is issued before any final decision is made.
Only then, based on all the evidence and your response, is a decision reached.
If any of those steps are skipped, rushed, or faked — you may have a strong unfair dismissal case, even if you were accused of misconduct or poor performance.
Procedural fairness isn’t a technicality. It’s a right. And the Commission takes it seriously. No employer can legally justify a dismissal just because they thought it was the right outcome. They must prove the process leading to that decision was genuinely fair, balanced, and lawfully executed.
