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Natural Justice – a weapon or a protection?

Posted on by Cheryl-Anne Laird

The concept of natural justice is a very old one. It, like Captain Cook, travelled to our shores over 200 years ago and yet in 2018 it is still often a misunderstood concept.  This should not surprise me as “natural justice” has become not only a guarantee of fairness in administrative processes, but also a weapon to call into question the fairness of a process.

There is, of course, a technical legal definition of natural justice; however this would not assist most people understand when and how natural justice should be applied in the workplace. I vacillate between being amused and astounded at the assertions I hear about people being “denied natural justice”, in circumstance where the concept of natural justice does not arise. Similarly, I am often horrified at the lack of natural justice that is afforded in some processes. So the question becomes – when do you get natural justice and what does it look like?

In its simplest terms, natural justice means that if there is a circumstance where there may be a prejudicial outcome for an employee, they are entitled to know the details of those circumstances and to respond to them before a decision, relying on that information, is made.

What it does not mean, is that employees are entitled to know anything and everything they want to know. If information is not potentially detrimental to them then the issue of natural justice does not arise. If a decision is made that the information will not result in any detrimental outcome, then natural justice does not arise.

There are circumstances which limit an employee’s right to natural justice. Examples include but are not limited to, where there are genuine safety issues with providing information (safety/retribution in relation to the person raising the issue, or safety of the person seeking to obtain the information, for example a risk to psychological wellbeing). There are also statutory provisions such as in the case of a public interest disclosure, where the right to natural justice can be weighed against the privacy and risk to the complainant.

By far the most amusing situations arise in the investigation space, where we are continually faced with assertions that ‘natural justice’ requires that the employee is provided with all information before they are required to provide a response.  Needless to say, this is counter intuitive to the concept of an investigation, whereby the person being investigated is able to “craft” a response in light of any potentially detrimental evidence. However, all such potentially detrimental evidence needs to be disclosed and the person given an opportunity to provide a response in relation to it, prior to a final determination being made.

At first instance however, natural justice is satisfied by providing sufficient details to enable a person to provide a meaningful response to any conduct or allegations that may be detrimental to them. For example it could be alleged that on 15 May 2018 at 10.30am at a specific location, person A, hit person B on the head with a brick.  When putting this allegation to person A, this is sufficient information for them to provide a meaningful response. If they deny it, and you have contrary information, it is at this point that you provide that information, for example that there were 4 witnesses who say they saw the event. Person A is then given an opportunity to respond to the potentially detrimental information regarding the witness information. If person A had admitted to hitting person B with the brick, the fact that others saw it occur would have been irrelevant.

Now finally, natural justice does not mean that if someone thinks that you have been talking about them – but you have not, or what you have been discussing is not potentially detrimental to them, that they are entitled to know everything you said to prove you were not talking about them or saying something potentially detrimental. Natural justice is not a weapon, it is a protection to ensure that people who find themselves in a position of potential detriment are treated fairly and given an opportunity to respond.

If you would like to learn more about natural justice, please contact us on +61 7 3833 1200 or solution@livingstones.com.au.

Written by Cheryl-Anne Laird

Cheryl-Anne Laird

Cheryl-Anne has positioned herself as a confident and trusted advisor. Cheryl-Anne has built an enviable reputation for her energy and commitment to quality and value. She believes passionately that building strong long term relationships, and becoming part of the issue resolution process, is the best path to excellent client outcomes. Beyond work, Cheryl-Anne loves to travel, enjoys reading, live theatre, trying new restaurants and spending quality time with friends and family.

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