Fair Process Still Matters: High Court Clarifies Procedural Fairness in Workplace Discipline

The Dispute
The employee, a Country Operations Manager, was dismissed following allegations that he had forwarded company information to a personal email account and established a competing business while still employed by the employer. The CMA found that the employer had valid and fair reasons to terminate the employee’s employment but held that the disciplinary process was procedurally unfair. Both parties challenged different aspects of the award before the High Court.

While the Court ultimately upheld the validity of the reasons for termination, it closely scrutinised the process through which the decision was reached.

The Appearance of Bias Can Be as Important as Actual Bias
The most significant aspect of the decision concerns the role played by a senior officer who signed the suspension letter, disciplinary charges, termination letter, and the response to the employee’s appeal.
Although the evidence showed that the investigation and disciplinary hearing were conducted by different individuals, the Court found that the concentration of disciplinary authority in one office created a legitimate perception of bias. The Court observed that fair administrative justice requires not only actual impartiality but also the appearance of impartiality. An appeal determined by the same authority that initiated disciplinary proceedings undermines the purpose of appellate review.

Employers Are Not Required to Disclose Investigation Reports
The Court also addressed whether procedural fairness requires an employer to provide an employee with an investigation report before a disciplinary hearing.

The Court rejected that proposition and confirmed that neither the Employment and Labour Relations Act nor Rule 13 of the Code of Good Practice Rules imposes a legal obligation to furnish an employee with an investigation report before disciplinary proceedings commence. The essential requirement is that the employee understands the allegations and is given a meaningful opportunity to respond.

Key Takeaways for Employers

• Separate investigative, disciplinary, and appellate functions.
• Avoid having the same individual control the process from suspension to appeal.
• Ensure employees are informed of allegations in sufficient detail to prepare a defence.
• Follow internal disciplinary procedures as closely as possible.
• Maintain records demonstrating compliance with the Employment and Labour Relations Act and the Code of Good Practice Rules.
• Remember that procedural fairness is assessed not only by what was done, but also by how the process appears to a reasonable observer.

Should you have any questions regarding this publication, do not hesitate to contact Yassin Maka