Whether an employee is entitled to procedural fairness depends on the circumstances of the case.
Procedural fairness generally applies to decisions made under legislation which could adversely affect the employee's rights and interests.
- a decision to reduce an employee's classification for misconduct or unsatisfactory performance (section 23(4) of the Public Service Act)
- a decision to suspend an employee from duty for suspected misconduct (Regulation 3.10)
- a determination of misconduct (made under agency procedures established under section 15(3) of the Public Service Act)
- a sanction imposed for misconduct (section 15(1) of the Public Service Act).
Some legislative provisions expressly provide a procedural fairness entitlement, or modify it.
Some enterprise agreements (EA) provide for procedural fairness when making EA-based decisions.
Generally preliminary decisions that lead to a final decision do not have procedural fairness obligations.
- a decision to commence a misconduct investigation would not normally require procedural fairness as:
- it initiates a decision-making process that may have an adverse outcome, but may not
- procedural fairness will be afforded during the misconduct decision-making process.
Consistent with the above, a decision to commence a managing under-performance process would not normally require procedural fairness.
However, an EA may require procedural fairness before making this decision. If it does, it is advisable for agencies to afford procedural fairness.