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January 12

Red Alert to Employers – Natural Justice in the workplace

Not observing the rules of Natural Justice is an area where most employers slip up. Often employees succeed in substantial payouts under the Employment Relations Act because the correct procedure has not been followed.

 

What does “Natural Justice” mean?

According to Wikipedia: “In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general “duty to act fairly”. These rules became part of the Roman legal system and it was seen as so inherent to fairness there is no need to put it in legislation. Since then it became part and parcel of our law.

9 Benefits of natural justice for employees

Let’s assume for a moment that you have made a complaint, this is what you can expect when Natural Justice is considered in your workplace…

1. Confidentiality must be maintained at all times. I did find that some employers don’t adhere to this rule and leak information to other staff members.
2. The person doing the investigation must be unbiased. It is an open question if the senior manager of the specific department where the incident happened could be unbiased as a negative report will reflect badly on them.
3. In my opinion it is best to ask your employer to contract the services of an outside investigator. You could ask for a Facilitator from Achieve Workplace Fairness Limited, to do the investigation and/or to be your support person and represent you.
4. The investigator must be fair and just and avoid disparity of treatment. This will only happen if the investigator is unbiased.
5. The person who is subject to a complaint must know the facts and allegations made against them. I find it interesting that in Secretary of State for the Home Department v. AF (2009), Lord Phillips of Worth Matravers (UK) said:

“The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed.” I think it is fair when co-workers complain about you in a mobbing action that you have the right to examine and counter comment on their allegations.”

1. Your employer must give you a reasonable time to respond to the allegations.
2. In my opinion it is best to have a support person present during interviews and/or meetings
3. The answers and explanations of both parties must be genuinely considered by the investigator and the employer.
4. All relevant evidence and submissions must be genuinely considered.

When these rules are not followed you could have a claim against your employer.

Neglecting the principals of Natural Justice could cost you thousands of dollars

Did you know that Australia have anti-bullying legislation since January 2014? The number of cases where employees took employers to task about bullying substantially increased in this period. Many of these cases centred on unfair performance appraisals. Statistics will soon be out. Are you willing to waste precious time in preparing for a mediation or case before the Employment Authority? Make sure your procedures are correct and that every manager is equipped to deal with investigating complaints. Are you willing to pay your employee thousands of dollars for such a mistake? Then on top of a payment to the employee you could also be ordered to pay costs. In a January 2015 New Zealand case an applicant was awarded $45,390 on costs plus disbursements.

Only you can avoid the pain!