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Tram driver denied procedural fairness, FWC rules

When a person or body is appointed to determine allegations of employee misconduct, there is generally an obligation to afford the employee being investigated natural justice or procedural fairness.

In a recent Fair Work Commission (FWC) decision, Australian Rail, Tram and Bus Industry Union v Rail Commissioner (2019), the principles of procedural fairness were examined.

By Charles Power

When a person or body is appointed to determine allegations of employee misconduct, there is generally an obligation to afford the employee being investigated natural justice or procedural fairness.

In a recent Fair Work Commission (FWC) decision, Australian Rail, Tram and Bus Industry Union v Rail Commissioner (2019), the principles of procedural fairness were examined.

In this decision, an investigator denied a tram driver natural justice when the investigator decided that she wilfully misled its investigation into bullying claims against her.

The denial of procedural fairness was the failure to provide the employee with an adequate chance to respond to the evidence.

In cases of alleged employee misconduct, procedural fairness requires the employee to be given an opportunity to put information or submissions to the decision maker.

The FWC confirmed that procedural fairness requires the decision maker:

Procedural fairness does not require the decision maker to:

The decision maker must be free of actual and apprehended bias.

Actual bias means the decision maker approached the issues with a closed mind or had prejudged the matter and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.

Apprehended bias is when, objectively speaking, a ‘fair minded and reasonably well informed observer’ might conclude that the decision maker did not approach the issue with an open mind.

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