Yes — Australian employers should give an employee a fair opportunity to respond before dismissing for poor performance or misconduct, even when the outcome seems obvious. Procedural fairness means telling the employee what the concern is, giving reasonable notice of a meeting, allowing a response, considering that response genuinely, and making a decision based on reliable information. It does not require an employer to keep an unsuitable employee indefinitely.

What is procedural fairness in dismissal?

Procedural fairness in dismissal is a defensible decision-making process. For an employer, it is the practical evidence that the employee knew the allegation or performance concern, understood the possible consequences, and had a real chance to explain before the decision was made. The Fair Work Act 2009 does not prescribe one script for every workplace, but the Fair Work Commission examines whether the process was reasonable in the circumstances.

This is separate from whether there was a valid reason. A genuine performance gap, serious misconduct allegation, operational issue or loss of trust may be a sound reason to end employment. A strong reason can still be undermined by a rushed, predetermined or inconsistent process. Employers should review their performance management process before moving to dismissal.

When must an employer follow a fair process?

A fair process is especially important where the proposed dismissal relates to capacity, conduct, repeated underperformance, attendance, workplace behaviour or a breach of policy. It also matters during probation. Probation does not remove notice obligations or permit an employer to dismiss for a prohibited reason.

The risk is higher if the employee may be able to bring an unfair dismissal application. The minimum employment period is generally six months, or 12 months for a small business employer with fewer than 15 employees. An application must usually be lodged within 21 days of dismissal. The high income threshold from 1 July 2026 is $190,100, and the maximum unfair dismissal compensation is $95,050, subject to the statutory rules.

Separate risks can arise under the general protections provisions. A dismissal must not be because an employee exercised a workplace right, made a complaint, took lawful leave, engaged in industrial activity, or because of a protected attribute. General protections compensation is uncapped. Review the general protections claims guide for employers when a complaint or protected activity is part of the background.

How should an employer run a procedurally fair dismissal process?

1. Identify the issue precisely

Separate facts from conclusions. Instead of writing “poor attitude”, identify the conduct, date, policy or expectation, people involved and business impact. For performance, state the measurable standard that was not met. For misconduct, describe the alleged conduct without presenting an allegation as proven.

2. Investigate before deciding

Collect relevant documents, rosters, timesheets, emails, policies, customer complaints and witness accounts. Give the employee a reasonable opportunity to respond to allegations that may affect the decision. Keep an investigation record and avoid promising a particular outcome.

3. Give a clear show-cause or meeting notice

The notice should explain the concern, the possible consequence, the meeting time and the employee’s right to bring a support person where appropriate. A support person is not generally an advocate, but the employer should consider any applicable award, enterprise agreement, contract or policy.

4. Hear and test the response

At the meeting, explain the concern in plain language and ask open questions. Allow the employee to respond fully. If new material emerges, pause and investigate it rather than forcing an immediate decision. Consider whether illness, disability, injury, language, training, unclear instructions or a reasonable explanation changes the analysis.

5. Consider alternatives and consistency

For performance concerns, ask whether expectations were clear, support was provided and a reasonable improvement period was allowed. Compare the proposed outcome with how similar cases were handled, while recognising that each case turns on its facts. Serious misconduct may justify a faster process, but the employer should still establish the facts and give the employee a chance to respond where practicable.

6. Make and communicate the decision

Only decide after considering the response. Tell the employee the outcome, the reasons, the termination date, notice or payment in lieu, final pay arrangements and return-of-property requirements. Put the decision in a concise letter and keep the supporting records. Use a tailored termination letter template as a starting point, not a substitute for case-specific advice.

What mistakes make a dismissal procedurally unfair?

Other common errors include treating a probation period as a legal exemption, failing to investigate a complaint of bullying or discrimination, refusing a reasonable request for a support person, and allowing a manager who is personally involved in the dispute to make the final decision without oversight.

The Fair Work Ombudsman dismissal guidance explains the basic employment-ending obligations. Employers should also check the Fair Work Commission unfair dismissal information and the relevant Modern Award or enterprise agreement before finalising the process.

How can an employer document procedural fairness?

Keep a chronological file containing the original concern, investigation plan, evidence, meeting invitations, employee responses, notes of any adjournment, decision-maker’s reasoning and final letter. Record who made each decision and when. Notes should distinguish what was observed, what was alleged and what was accepted after investigation.

Do not overload the file with irrelevant personal information. Store employment records securely and limit access to people who need it. Accurate records help the employer explain its decision months later, when memories have faded and the dispute may be assessed by an external decision-maker.

How does procedural fairness differ from a valid reason?

Employers should test two separate questions. First, is there a sound reason connected with the employee’s conduct, capacity or the employer’s operational needs? Secondly, was the employee treated fairly while that reason was investigated and acted on? The answers should be recorded separately. This avoids a common mistake: assuming that strong evidence makes a flawed process safe.

For example, a customer complaint may support a serious performance concern, but the employer should check the complaint’s accuracy, ask the employee for their account, and consider whether the expected standard was communicated. If the employee disputes a key fact, the decision-maker should explain why one account was preferred. That short reasoning trail can be important if the decision is later challenged.

When should an employer obtain advice?

Obtain advice before dismissal where the employee has made a workplace complaint, taken leave, raised a safety issue, requested a flexible work arrangement, disclosed an injury or illness, or raised discrimination, bullying or wage concerns. Advice is also sensible where the evidence is contested, the employee is covered by an enterprise agreement, the business is near the small business threshold, or the proposed dismissal could affect several employees.

Do not delay urgent safety action while waiting for a perfect investigation. An employer can take proportionate interim steps, such as changing reporting lines or directing a person not to attend work on pay, while preserving a fair process and avoiding language that assumes guilt.

Quick employer checklist before dismissal

• Is there a clear, lawful and evidence-based reason?
• Was the employee told the substance of the concern?
• Was there enough time and information to respond?
• Were new explanations and relevant mitigating factors considered?
• Was the decision-maker impartial and the outcome consistent?
• Have notice, final pay, award terms and record-keeping requirements been checked?

Procedural fairness is not about making every process slow or formal. It is about making the decision reliable, explainable and proportionate. For a complex dismissal, an employer-side review before the termination meeting is usually cheaper than trying to reconstruct the process after an application is lodged.