By Charles Power

When a person or body is appointed to determine allegations of employee misconduct, there is generally an obligation to afford the employee being investigated natural justice or procedural fairness.

In a recent Fair Work Commission (FWC) decision, Australian Rail, Tram and Bus Industry Union v Rail Commissioner (2019), the principles of procedural fairness were examined.

In this decision, an investigator denied a tram driver natural justice when the investigator decided that she wilfully misled its investigation into bullying claims against her.

The denial of procedural fairness was the failure to provide the employee with an adequate chance to respond to the evidence.

In cases of alleged employee misconduct, procedural fairness requires the employee to be given an opportunity to put information or submissions to the decision maker.

The FWC confirmed that procedural fairness requires the decision maker:

• to explain to the employee the issues that he or she is going to determine;
• inform the employee of the nature and content of the credible, relevant and significant material obtained from sources other than the employee, which is adverse to the employee’s case;
• disclose to the employee material of this kind that helps the employee’s case;
• inform the employee of any adverse conclusion reached by the decision maker in respect of which the employee had no notice;
• give the employee a reasonable opportunity to address such new material and/or any unexpected conclusions by further information and submission; and
• in some circumstances, give the employee information provided to the decision maker by a third party which is relevant to the matters in issue, even though the decision maker says that the information was not taken into account in reaching an adverse decision.

Procedural fairness does not require the decision maker to:

• adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to the employee;
• disclose the decision maker’s deliberative processes or proposed conclusions;
• disclose verbatim copies of material to be considered – it is sufficient to inform the employee of its substance; and
• enable an employee to comment on his or her preliminary views before making a final decision.

The decision maker must be free of actual and apprehended bias.

Actual bias means the decision maker approached the issues with a closed mind or had prejudged the matter and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.

Apprehended bias is when, objectively speaking, a ‘fair minded and reasonably well informed observer’ might conclude that the decision maker did not approach the issue with an open mind.