Procedural Fairness in Workplace Investigations: Getting the Process Right When it Matters Most

Workplace investigations rarely unfold in ideal conditions. They are often urgent, emotionally charged and conducted under scrutiny from employees, regulators and, increasingly, the Fair Work Commission (Commission).

Over the past two years, that scrutiny has intensified significantly. Unfair dismissal and dismissal-related claims before the Commission have increased at a pace that is placing significant pressure on the system, with the Commission itself noting that current workload levels are becoming unsustainable. In the 2024–25 financial year alone, the Commission received 16,500 unfair dismissal applications, up from 14,772 the year before. Total lodgements reached 44,075, representing a 10 per cent increase year on year and a level well above historical averages.

Unfair dismissal claims now account for more than one third of the Commission’s workload, making them the single most common type of application.

This is not simply a statistical shift in volume. It reflects a workplace environment in which employees are increasingly willing, and increasingly able, to challenge dismissal decisions.

In that environment, procedural fairness is not a theoretical concept. It is a frontline discipline that determines whether your investigation stands up or unravels under it.

What procedural fairness actually requires in practice

At its core, procedural fairness is concerned with the fairness of the process, not the outcome itself. A decision may ultimately be defensible, but if the process by which it was reached is flawed, it remains exposed to challenge.

Those principles are not controversial. Where risk arises is in how they are operationalised.

Most leaders are familiar with the underlying principles. The individual must know the case against them, have an opportunity to respond, and the decision maker must be impartial.

Where organisations are exposed is rarely in understanding these principles, but in how they are applied in practice.¹

In a workplace investigation context, procedural fairness typically requires you to:

• Clearly articulate the allegations in sufficient detail;
• Provide a genuine and meaningful opportunity to respond;
• Ensure the investigator and decision maker are impartial;
• Base findings on relevant evidence, not assumption; and
• Communicate the outcome and reasons appropriately.

These elements will be familiar. They are not, however, a checklist.

Recent decisions bring this into sharper focus. In Peter Jones v Exclusive Contracting (WA) Pty Ltd [2026] FWC 253, the Commission accepted that the employee’s conduct was serious misconduct. However, the dismissal was still found to be unfair because the employee was not told the case against him or given an opportunity to respond before termination.

The message for employers is clear. Even obvious misconduct does not relieve an employer of the obligation to follow a fair process.

The real test: applying fairness when the facts are difficult

Procedural fairness is relatively straightforward when facts are clear and uncontested. The complexity arises when:

• allegations are serious or reputationally sensitive;
• there are conflicting accounts with no clear corroboration;
• confidentiality concerns limit what can be disclosed; and
• the organisation feels pressure to act quickly.

It is in these moments that process is most likely to be compressed, and most likely to be compromised.

The Commission has consistently emphasised that an opportunity to respond must be meaningful and must occur before conclusions are reached.

In Gardner v Piacentini & Son [2024] FWC 211, the employee was not given a meaningful opportunity to respond until after the employer had effectively substantiated the allegations. That sequencing was a key factor in the Commission’s criticism of the process.

Similarly, in Mullins v KAB Seating Pty Ltd [2025] FWC 371, allegations were framed in a way that did not allow the employee to properly understand or respond to them. This lack of clarity contributed to a finding that the dismissal was harsh, unjust and unreasonable.

Taken together, these cases reflect a recurring issue. Procedural fairness is often undermined not by the absence of process, but by the way it is executed. It requires a meaningful, properly informed opportunity to engage with the case before findings are made.

Practical tips: strengthening procedural fairness where it counts

In our experience, organisations that manage investigations tend to apply discipline at a few critical points.

1. Invest in the quality of allegations

Poorly particularised allegations remain one of the most common sources of procedural risk. As Mullins demonstrates, if an employee cannot understand the case against them, the process is unlikely to withstand scrutiny.

2. Treat the response as a critical input, not a procedural step

The Commission will examine whether the response was capable of influencing the outcome. A process that moves quickly to determination, or appears to have reached a conclusion in advance, is inherently vulnerable.

3. Be precise about what material is put to the respondent

Material that is credible, relevant and significant to the findings should be put to the individual for response. This requires careful judgment, particularly where confidentiality issues arise.

4. Maintain discipline around impartiality

Investigation quality continues to feature prominently in recent decisions. Where key witnesses are not interviewed, evidence is not fully tested, or investigators appear aligned with a particular outcome, the Commission is willing to characterise the entire process as deficient.

5. Document reasoning, not just outcomes

A defensible process is one that can be explained. Clear records of how evidence was assessed and why conclusions were reached are critical, especially where an organisation chooses to waive privilege over an investigation report by disclosing more than the findings.

Common traps that continue to expose organisations

Despite best intentions, several patterns continue to drive risk.

• Rushing to outcome under pressure
  Compressed timeframes often result in inadequate opportunities to respond. While urgency can be real, it will not excuse a failure to provide procedural fairness.
  
  
• Confusing investigation with disciplinary decision making
  Blurring these roles increases the risk of both actual and perceived bias.
  
  
• Over reliance on policy wording
  Even where conduct clearly breaches policy, procedural fairness must still be observed before action is taken. The Commission has consistently reaffirmed this principle.
  
  
• Failure to get the sequence right
  An opportunity to respond must be provided before findings are made. Processes that reverse this sequence will attract criticism, as seen in Gardner.

• Failure to adapt to context
  Procedural fairness is not fixed. The more serious the allegation and its consequences, the more rigorous the process must be.

A final observation: fairness is cultural, not just procedural

Procedural fairness is often framed as a legal requirement. In practice, it is also a reflection of organisational culture.

A process that is fair reinforces trust and can mitigate psychosocial safety risks, even where outcomes are contested. A process that is perceived as unfair does the opposite, regardless of the result In a heightened psychosocial safety regulatory environment, an unfair or deficient process creates psychosocial risk which organisations are obliged to eliminate or control.

Recent Fair Work Commission decisions reinforce these expectations. The Commission is not asking whether employers intended to be fair. It is asking whether fairness is evident in the way decisions are made.

For boards and executives, that is the critical insight.

Procedural fairness is not simply a legal safeguard. It is a marker of organisational integrity, organisational safety and a critical component of defensible decision making.

How we can help

For many organisations, the challenge is not understanding procedural fairness. It is applying it consistently and confidently in complex, high stakes situations.

Moores works alongside boards, executives and HR leaders to:

• design investigation frameworks that are defensible, practical and aligned to the organisation’s risk profile;
• support or conduct sensitive and trauma-informed investigations where independence, expertise or capacity is critical;
• test proposed approaches at key decision points, particularly where procedural risk is emerging;
• assist with drafting allegations, show cause materials and outcome communications to ensure fairness is embedded in the process; and
• review completed investigations to identify vulnerabilities before decisions are implemented or challenged.

We are often engaged not because something has gone wrong, but because the stakes are too high to leave the process exposed.

A well-run investigation will not always produce an easy outcome. But it should always be one that can be explained, defended and trusted.

Contact us

Please contact us for more detailed and tailored help.

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^{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

1. Please note this article has been drafted on the basis the considerations apply to employers and businesses that are not small business employers. Relevant laws and procedural fairness considerations may differ for a small business employer. ↩︎