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In the recent decision of Australian Rail, Tram and Bus Industry Union v Rail Commissioner, the Fair Work Commission (FWC) discussed the need to afford employees standards of procedural fairness when investigating allegations of misconduct. The case concerned an employee who claimed she was denied procedural fairness and/or natural justice because she was not given an adequate opportunity to respond to evidence against her in bullying allegations. The FWC took the opportunity to set out various requirements of procedural fairness in these instances. The decision maker is required to explain to the employee the relevant issues and material, including anything adverse or useful to their case. Any adverse conclusions the decision maker reaches, which are unknown to the employee must be also be disclosed. Finally, the employee is to be given a reasonable chance to make submissions, including after new material or unexpected conclusions come to light in the investigations. However, the FWC made clear that the decision maker does not need to disclose every piece of information in what is described as an “open file” policy nor to disclose deliberative processes. It is an additional requirement that the decision-maker avoids actual or apprehended bias. Contact M+E for further information on rights and obligations during investigations.

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