Workplace issues can escalate quickly, particularly where a manager is presented with an allegation, complaint or performance concern and is uncertain as to the appropriate next step. In many cases, the difficulty is not necessarily the underlying conduct itself, but the process adopted by the employer in responding to it.
Pursuant to the Fair Work Act 2009 (Cth) (FW Act), the process followed by an employer can be highly relevant when determining whether a subsequent dismissal is harsh, unjust or unreasonable. Section 387 requires the Fair Work Commission to consider, amongst other matters, whether there was a valid reason for dismissal, whether the employee was notified of that reason and whether they were provided with an opportunity to respond.
In Yong v UGC Holdings Pty Ltd [2026] FWC 976, the employer relied upon a number of matters to justify the dismissal of an employee, including alleged conduct during a disciplinary meeting, concerns regarding professional boundaries, the taking of leave without approval and the use of a workplace side door. The Commission was not satisfied that the matters relied upon constituted valid reasons for dismissal. Importantly, the employee was first placed on notice of the employer’s concerns during the same meeting at which the employment was terminated and was not provided with a proper opportunity to respond. The dismissal was found to be unfair and compensation equivalent to 26 weeks’ pay was ordered.
The decision demonstrates the difficulty that can arise where a manager has identified conduct of concern but proceeds directly to an outcome without first establishing an appropriate process. A workplace concern may ultimately justify disciplinary action; however, this does not remove the requirement to clearly identify the allegation or concern, obtain the relevant evidence and provide the employee with a genuine opportunity to respond before a decision is made.
Similar principles arise where an employer receives a complaint from one employee regarding another. The receipt of a complaint does not, of itself, establish misconduct. Depending upon the circumstances, it may be necessary to clarify the allegations, identify witnesses or other evidence, determine whether an investigation is required and consider whether any immediate interim measures are appropriate. Where disciplinary action may follow, the employee concerned must be made aware of the substance of the allegations against them and provided with a meaningful opportunity to respond.
More broadly, the Commission has consistently recognised that procedural fairness requires an employee who may be adversely affected by a decision to be informed of the case against them and provided with an opportunity to answer it. An opportunity to respond must also be genuine. It is insufficient for an employer to simply go through the process of obtaining a response where the decision to terminate has, in substance, already been made.
In practical terms, this means that when an employee complaint, allegation or disciplinary issue arises, the appropriate first step may not always be immediately apparent. Depending upon the circumstances, an employer may need to consider:
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whether the matter requires informal management, a formal disciplinary process or an investigation;
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whether the allegations have been sufficiently particularised;
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what evidence should be obtained before findings are made;
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whether any immediate workplace risks require interim measures;
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whether the employee should be provided with an opportunity to respond before any further action is taken; and
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whether the proposed outcome is supported by the evidence and proportionate to the conduct established.
These are often the points at which early workplace relations support is most valuable. Once correspondence has been issued, allegations have been improperly framed or a manager has communicated a predetermined outcome, correcting the process can become considerably more difficult.
When a workplace matter goes pear shaped, the priority shouldn’t be reaching an outcome as quickly as possible. It should be about making sure the next step is the right one.
Pause, establish the facts and get the process right. The decisions that follow will be stronger, and far more defensible, because of it.