In a decision just handed down, the Rail Commissioner in South Australia was found to have fallen short of its obligation to adhere to natural justice and procedural fairness principles when conducting a disciplinary process.

The decision by Commissioner Hampton in Australian Rail, Tram and Bus Industry Union v Rail Commissioner [2019] FWC 3944 is notable in that it considers the concepts of ‘procedural fairness’ and ‘natural justice’ and discusses them in the industrial context. In particular, the decision explores the application of these principles to a disciplinary process.

The Rail, Tram and Bus Union (RTBU) applied to the Commission to resolve a dispute over the disciplinary process used in regard to various allegations, including bullying, against a Tram Driver working out of the Glengowrie Depot in Adelaide.

The employee was presented with three allegations (Primary Allegations) for which a full disciplinary process was completed, the allegations were substantiated but a disciplinary outcome was not yet provided.

The Rail Commissioner then formed the view that the employee's responses to the Primary Allegations were 'wilfully misleading' and a further 6 allegations to that effect were put the employee (Secondary Allegations). That is, the Secondary Allegations were expressly about the employee 'wilfully misleading' the investigator.

While the RTBU alleged multiple failings by the Rail Commissioner, in his final decision Commission Hampton found that the Primary Allegation process was compliant with natural justice and procedural fairness principles in accordance with clause 20.8 of the Agreement however the Secondary Allegations process was not.

Commissioner Hampton found that, on the facts of this case, the employee needed to be provided copies of all the evidence relied on for the Secondary Allegation process.

Furthermore, any decision in regards to 'wilfully misleading' the investigator would need to take into account considerations raised by the RTBU and those mentioned in the decision - which include that a mere rejection of a person’s evidence or conflicting evidence is not enough.

For it to be 'wilfully misleading' the positions would need to be black and white to an extreme, but also the evidence would need to be corroborated.

IMPORTANCE OF DECISION FOR FUTURE CASES

“The significance of the decision lies in the extensive consideration it provides to the meaning of 'natural justice' and 'procedural fairness' and how, when an employer is required to adhere to these principles, they may be applied in the industrial context,” said RTBU National Lawyer Mark Diamond.

“The decision analyses natural justice as an overarching concept and how procedural fairness falls within it. It then breaks down procedural fairness to its relevant components of the hearing and bias rule.

“To date, these concepts had not been adequately explored in industrial case law however the concepts themselves are well established in administrative law.

“This decision may provide guidance for future employment cases when employers are required to adhere to these principles although each case will turn on its own facts.”