You may have heard the term ‘natural justice’.  It probably sounds very vague if you haven’t heard the term before,  but natural justice is really just a way of referring to certain aspects of ‘procedural fairness’.  Natural justice is all about making process and procedure fair.

Natural justice is important to understand because it is part of your obligations when disciplining a worker, particularly in the context of unfair dismissal laws.  In addition, most Government departments you deal with also have to observe natural justice/procedural fairness when they make decisions.

The rules of procedural fairness are:

  •  The hearing rule;
  •  The no bias rule; and
  •  The evidence rule

The Hearing Rule

The hearing rule really just means allowing a person to get across their side of the story before a decision which relates to them is made.

As an employer this means allowing the employee time to prepare and present a ‘defence’ to allegations of misconduct.

This also places an obligation on you to write to the employee in such circumstances and specify what allegations have been made against them.  Try and provide as much detail as possible, then give them the chance to reply to the allegations.

When the employee provides their response, you also need to show you have given genuine consideration to it.

The No Bias Rule

The second rule is as exactly as it sounds – a decision-maker must make an unbiased decision.  Although not necessarily a strict rule when it comes to unfair dismissal law, often employers get into trouble because they sack workers they don’t like rather than for genuine performance issues.

The no bias rule may help you if you are dealing with a Government body which has made a decision you are unhappy with.  This rule also covers any processes leading up to the decision itself – like only going to one party for extra information and not the other.

Signs of a biased decision

  • The decision-maker has a conflict of interest, such as a financial conflict of interest or is closer to one of the parties than another.
  • The decision-maker has shown obvious hostility to one side.
  • The decision-maker has shown obvious favouritism to one side.
  • The decision-maker has a role as both party to a proceedings and the ‘judge’/adjudicator.

The Evidence Rule

Put simply, a decision-maker needs to ensure they have evidence to support their decision. It is not permissible for a decision covered by natural justice rules to be made on conjecture or speculation.  The decision-maker’s conclusion therefore needs to be based on evidence which is clearly relevant to the issue.

A further obligation under this rule is that the decision-maker explains the reasons for their decision with reference to the evidence which it is based upon.

This rule also means that all evidence related to the allegations made by one party must disclose to the other before the decision is made. To find a lawyer for any, and all, of your business needs, get in touch with LegalVision’s team of experienced business lawyers.

Lachlan McKnight

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