What is meant by Principles of Natural Justice and Procedural Fairness - DOC

							                                               Managing Underperformance – Resources and Supporting Information

  Natural Justice and Procedural Fairness- A checklist for record keeping.

Addressing the following points when documenting any action relating to performance concerns will
help to ensure that natural justice and procedural fairness principles are covered as well as providing
a record of the procedure used. It is important to note that the points do not represent a linear
sequence. Some aspects may need to be repeated, and therefore recorded, more than once during
the procedures.


There is a valid reason for taking action and clear communication of policies and procedures
Describe the identified performance concerns.
 The expected performance outcomes including details of any benchmarks etc which have been
   used to identify that outcome
 The current level of performance in relation to the identified outcome including the criteria used to
   determine the current level of performance
 The time period over when the concerns have been evident
 Evidence that the employee is aware of the expected performance outcome eg minutes of a
   meeting (check that the employee was present at the meeting) or induction processes. Written
   policies and procedures may not be sufficient in themselves if it cannot be demonstrated that the
   employee has been made aware of them and understands their content (an interpreter may be
   necessary in some cases). It is also important that such information is periodically re-
   emphasised.
 Evidence that the employee is aware of the potential consequences of not achieving the required
   performance outcomes and conduct

Provide background information to indicate that there is a valid reason for taking action.
 What steps have been taken to establish and confirm the facts of the situation?
 Is the reason for action valid, given the way that others are treated or the usual practices in the
   work place?
 Would others see your actions as valid and reasonable?
 What evidence is available to support your conclusions?
Where there are issues which could be seen as poor performance or misconduct, provide a rationale
for why the situation is to be treated as one of poor performance.

The role of those involved has been established
Has the DECS officer with delegated authority (or any other decision maker) considered whether they
have a specific or perceived conflict of interest as decision maker for the situation?
 Has the employee expressed any concern about the impartiality of the decision maker?
 If yes, what was the basis of the concern, how was it addressed and what was the outcome? (eg
   alternative decision maker appointed)

Who is the appropriate line manager to manage the process to address the performance concerns?
 Does the line manager have the appropriate authority?
 Is there evidence of conflict between the employee and the line manager?
 If yes, how was the conflict addressed and what was the outcome?
The employee has been advised of the concerns
 Does the employee have all the information required for a full understanding of the performance
   issues and the procedures for addressing them?
 How was the employee advised of the performance concerns?
 What information has the employee been given about the nature of the concerns and the basis
   for raising them?
 Have verbal discussions been confirmed in writing and signed off by all parties as an accurate
   record of what was covered?
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                                              Managing Underperformance – Resources and Supporting Information

    Was the employee given sufficient information and time to be aware of the broad nature of the
     concerns and seek a union representative or support person if desired?
    If a support person was nominated, were they given information about the scope and limitations
     of their role?
    Have all aspects of the Managing Underperformance procedures been explained?
    Does the employee understand the consequences for failing to achieve the required performance
     outcomes?
    Has consideration been given to whether the employee required an interpreter?

The employee has been given an opportunity to respond
Has the employee had a reasonable opportunity to respond to the performance concerns before
decisions about implementing underperformance processes were made?
 How did the employee respond to the concerns that were raised?
 Were they actively invited to contribute their point of view and/or state whether there were any
   mitigating factors that should be taken into account before decisions about action are made?
 What additional information did the employee provide?
 What was done to manage differences between the employee’s point of view and that which had
   been presented? What was the outcome?

Action has been initiated and taken promptly
Has action to address performance concerns been taken in a timely manner?
 How much time has lapsed since the issue/s emerged?
 Have dates and times been included in the information that has been recorded about the
   performance concerns and strategies for addressing the concerns?
 Was any action delayed to the extent that the employee could argue that the unsatisfactory
   performance had been accepted or condoned by the employer?
 Is there any evidence to suggest that action was taken too hastily and has had an unfair impact
   on the employee?

A strategy has been established to support the employee to address the issue
The employee understands the process to address the performance concerns and the support that
they will be given and has signed off the written record of the Action Plan and monitoring process.
Details of the following should be included:
 The nature of the unsatisfactory performance aspects and the performance outcomes expected
 Support that will be provided to help achieve the identified performance outcomes, such as
   corrective action plans including training, counselling
 Reasonable milestones and time lines for implementing the corrective Action Plan and achieving
   the identified outcome
 Who will be responsible for the various aspects of the Action Plan?
Details of the monitoring and review process including:
 Progress achieved towards performance targets
 Aspects of continuing concern
 Any new information raised for consideration
 How the employee’s views were sought and considered
 Consideration of any mitigating factors
 Adjustments made to the Action Plan based on the review discussion.




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                                             Managing Underperformance – Resources and Supporting Information

The employee understands the consequences of continued poor performance
 Include copies of any warnings about consequences for not meeting the outcomes identified in
   the Action Plan.

Full consideration has been given to all the facts
 Has full consideration been given to all relevant facts and information gathered before making a
    decision to progress further with the Managing Underperformance procedures?
 Have the employee’s responses been fully considered prior to any recommendation or decision
    being made?

All relevant documentation is attached
 Copies of any written documents relevant to the performance situation should be included in the
    record. This may include emails, records of phone conversations, copies of feedback and/or
    complaints (with the exception of any confidential details of a complainant).
 There must be a clear link between the documents and the performance concern. Copies of any
    documents referred to in other parts of the record should be included.

All the information has been shared with the employee
 Sharing all of the records with the employee helps to build trust and ensures that the employee is
    aware of all aspects of the procedures to address performance concerns. Having the employee
    sign the documentation as an accurate record and providing the chance to include comments
    helps to improve understanding and may prevent a complaint from the employee at a later stage.
    This should also save time by avoiding the need for the employee to request access to any part
    of the performance record through a Freedom of Information application.
 Matters which have not been formally raised with the employee or matters to which the employee
    has not had an opportunity to respond cannot be used in the decision making process.




Version 1.0 April 2005