Frequently Asked Questions

Q: Are employers required to act fairly?

It may be surprising for some readers to learn that there is no implied common law obligation for an employer to act fairly in relation to investigative or disciplinary processes. Although, under the Fair Work Act 2009 (Cth) (the Act), certain behaviours by an employer may comprise an adverse action against an employee who is exercising a workplace right – including disciplinary proceedings, investigations, warnings, and suspension from their duties. Therefore, a duty will be owed to an employee in statutory unfair dismissal jurisdictions where applicable, if statute makes available processes relating to discipline and dismissal, in expressed contractual provisions, and binding industrial instruments.

Therefore, if there are no protections in place either through contract or industrial instrument, there is no implied duty for an employer to act fairly if they commence any investigative or disciplinary processes. Furthermore, there is no common law duty allowing an employee to respond to any allegations or reasoning behind an action of dismissal or discipline as well.


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