A starting point for any court of law when assessing the legitimacy of an administrative decision is fairness – procedural fairness
Now that Safe Work Australia has released the draft model code for bullying in the workplace, employers need to ensure that procedural fairness is at the heart of their response to bullying issues.
A fundamental concept of law is that whenever you make an administrative decision about an employee you need to ensure that the process was procedurally fair.
This applies uniformly to managing misconduct and performance management. Ensuring that actions are taken as a result of ‘reasonable management action’ involves abiding by these principles and sticking to your policies and procedures.
The case of Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police NSWIRComm 51 is a classic example of how not to conduct a workplace investigation.
The NSW Industrial Relations Commission found that the investigation process was so infected by procedural deficiencies as to contaminate the process.
The three key principals of procedural fairness are:
- The right to be heard
- The right to an unbiased decision maker
- The right to have the decision based on evidence
Achieving an unbiased decision can be difficult, the decision makers must not be biased, that is:
- Potentially or,
- Perceived as being
It is not enough to get in a second or third opinion to form a committee of decision makers. Bias is assessed using the principle of one biased all biased, rendering any such decisions as biased as if they were made alone.
When assessing whether there is perceived or potential bias, the law uses the reasonable person test to make the assessment: would a reasonable person in full possession of the same information think there was a potential or perceive a bias?
Flaws found by the Industrial Relations Commission (NSWIRComm 51 ) included:
- the relevant decision-maker admitted that she: (a) had a pre-determined view of the outcome of the investigation prior to its completion and (b) took irrelevant matters into consideration in making her decision,
- the initial investigator had been involved in one of the alleged incidents and had previous disagreements with the employee under investigation,
- two witnesses present at the alleged incidents were not interviewed,
- there were unreasonable delays in the process,
- the employee under investigation was not given details of the allegations against him until he was interviewed many months after the investigation process commenced.
Putting this into practice in workplace investigations or in performance management practices:
- The right to be heard means making sure the employee has enough information to know what they have done wrong, and provide them with an opportunity to be interviewed and provide their side of events.
- Ensuring an unbiased decision maker means removing decision makers, managers and investigators who have had prior dealings with the employee that could affect their view of the current case. Anyone with a conflict of interest in determining the case without bias should be distanced from the proceedings.
- The right to have the decision based on evidence entails collecting all the available evidence within reason, and assessing that evidence without bias or favour. Knowing how to weight the reliability of different forms of evidence is critical in drawing the correct conclusions in law.
Safe Work Australia Draft Code of Practice – Preventing and Responding to Workplace Bullying
Procedural Fairness: a practical guide for workplace investigators