Procedural fairness: The importance of employees having a chance to respond

Procedural fairness (or fair process) is an essential requirement to be followed when dismissing an employee. In the case Wolak v Boss Transport [2023], the Court found that Boss Transport failed to abide by this requirement when dismissing one of its bus drivers.


What is procedural fairness?

Procedural fairness is required before dismissing or taking action against an employee. Under the Employment Relations Act 2000, employees are entitled to a proper process at law. Before acting against an employee, an employer must ensure that they have sufficiently investigated the allegations, raised their concerns with the employee, given the employee a reasonable opportunity to respond to the employer’s concerns and genuinely considered the employee’s explanation.


The case: Wolak v Boss Transport [2023]

In 2019, Boss Transport Limited (Boss Transport) employed Beth Wolak as a bus driver. A few years later in November of 2021, a complaint was made against Ms. Wolak for an incident when operating a rail replacement bus service. In early December, Ms. Wolak received a warning stating that continuing to receive complaints was “unacceptable” and that any further complaints would result in her employment being “terminated.”


Another incident occurred on December 17, 2021 when Ms. Wolak was driving a charter bus with schoolchildren on board in Lower Hutt. On the bus, the children started becoming unruly and moving erratically around the bus, which, in her view, was dangerous. While driving, Ms. Wolak spotted a Police car and she safely pulled over to ask the Police if they could come on board to speak with the children. The police obliged and the children’s behaviour improved dramatically. Ms. Wolak reported the incident by telephone to the company and then later filled out an incident report.


Following the incident, the school contacted Boss Transport because very angry parents were questioning the school about why police officers were brought onto the bus. After the angry response, the company management met and decided to dismiss Ms. Wolak. In a letter written to her, the company outlined that they considered the incident as a “serious misconduct” and that they had “no option other than to terminate [her] employment.”.


The Court held that Boss Transport dismissed Ms. Wolak in a manner that lacked procedural fairness and that the company did not follow a fair process as required by her employment agreement, therefore holding that her dismissal was unjustified. Boss Transport did not investigate the allegation; the company did not ask her for an explanation of what occurred or whether the action of involving police was warranted. A letter was merely sent to her informing her of its decision to dismiss her.


The Authority went further than this, noting it did not see how Ms. Wolak’s actions in bringing the Police onto the bus could be construed as serious misconduct; the Authority labelled this behaviour as a “… sensible way of de-escalating what Ms. Wolak saw as a difficult and dangerous situation.” The Authority agreed that not reporting the incident would have been an issue but noted that there was clear evidence Ms. Wolak had done so.


The case highlights the importance of giving employees a fair chance to respond to incidents and allegations that have arisen. If this does not occur, then the employee dismissal may be found to be unjustified.


If you or someone you know is facing difficulties with an employer, or if you believe you have been unfairly dismissed, please get in touch with the Watermark Team directly. We are happy to assist you.