Reviews, investigations, hearings, or appeals related to grievance, disciplinary, bullying or harassment at work, or protected disclosures, all have a common requirement to comply with the principles of natural justice and fair procedures.
What is meant by Natural Justice and Fair Procedures?
Natural justice is legal language for two ancient rules from the Romans.
The first is a rule against bias is known as “nemo iudex in causa sua”. It means that no person can judge a case in which they have an interest. Thus, those conducting a review/investigation/hearing/appeal must be sufficiently removed from it. The degree of independence required will depend on the seriousness of the matter under review.
“Audi alteram partem” means “hear the other side too”. It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
Principles of Natural Justice
The principles of natural justice represent the basic requirements of fair procedure. The minimum requirements are:
- Notice to the employee of the specific allegation to which he or she must answer and of the likely consequences if the allegation is established.
- An opportunity which must be real as opposed to a nominal one, for the employee to attempt to refute the allegation or to explain or mitigate his or her conduct.
- An unbiased consideration of the employee’s explanation in the sense that consideration must be free from pre-determination and uninfluenced by irrelevant considerations.
Every person is entitled to the principles of natural and constitutional justice.
Terms of Reference
Having a clear terms of reference which set out the matters under review/investigation, the scope of the review/investigation, the approach and methodology, etc. is important.
The parties involved should be advised of the terms of reference, the right to be accompanied if required to attend an interview, etc.
Draft and Final Report
Parties who are the subject of an investigation or affected by the outcome of an investigation should be provided with an opportunity to review the draft report to provide feedback on issues of factual inaccuracy and provide general comment on the report.
Reports should be pseudo-anonymised to protect the identity of parties, witnesses and other people mentioned.
Based on feedback on the draft report, any required changes must be made to the draft report prior to being finalised.
Fair Procedures Vary / Separation of Stages
Fair procedure must be employed to the maximum extent in courts. In the workplace, the courts recognise that what are fair procedures will vary somewhat from case to case, depending on the circumstances of each case, the contract of employment, the resources of the employer, the issues under review, the severity of those issues etc.
However, in any disciplinary process, there must always be a distinct divide between the investigative stage and the disciplinary hearing stage.
