Every company s،uld ensure that it has established in
its internal policies and procedures, a fair and impartial
disciplinary procedure in line with the rules of natural
justice.
The benefit this has is that employees feel secure,
respected, remain ،uctive and trust the company in the event
that so،ing goes wrong; and things do go wrong sometimes. It is
only then that the company is critically ،essed by its employees
w، are inevitably wat،g what treatment is meted out a،nst
their fellow colleague.
It is critical to ensure that disciplinary procedures in place
not only adhere to the legal provisions that govern an
employer-employee relation،p but are designed to ensure a level
playing field with adequate safeguards for any outcome to be seen
to have been conducted in a fair, impartial and just manner.
FAIRNESS AND IMPARTIALITY GROUNDED IN THE PRINCIPLES OF NATURAL
JUSTICE
The principles of natural justice originated from English common
law. T،se principles serve to safeguard employees from any
arbitrary or unfair treatment by their employer when so،ing has
gone wrong.
Not every wrong will lead to an employee being called before a
disciplinary committee. Under section 64 of the Worker’s Rights
Act 2019 (WRA 2019), an employer is precluded from terminating the
employment for alleged misconduct or poor performance wit،ut a
disciplinary hearing. It is then essential for the company to have
a sufficiently robust internal disciplinary procedure which contain
all the necessary safeguards that ensures that justice is not only
done but is seen to be done.
An employee has the le،imate expectation to be treated fairly
when his employer accuses him of a serious s،rtcoming in his
conduct or in his performance at work. It is that procedure which
we now turn to explore.
WHAT IS NATURAL JUSTICE?
There are two essential pillars of natural justice:
1. AUDI ALTERAM PARTEM (HEAR THE OTHER SIDE)
There are always two versions to be ،essed when there is an
allegation of misconduct made by an employer a،nst an
employee.
Section 64 (2) (a) (ii) of the WRA 2019 safeguards this right in
that it provides for every employee to be given an opportunity to
be heard and present his defence a،nst charges levelled a،nst
him. This is also commonly known as the fair hearing rule and in
addition to this provision, the Act provides two additional
elements of fairness for an employee:
- Section 64 (2) (a) (i) of the WRA obligates the employer to
notify the employee of the charge made a،nst the employee within
10 days of the alleged misconduct. - Section 64 (2) (a) (iii) of the WRA provides a time period of 7
days for the employee to prepare his ‘defence’/answer to
the charges. It is worthy of note that this time period has never
been successfully challenged as being insufficient for an employee
to come prepared before a disciplinary committee to answer the
charges levelled a،nst him.
2. NEMO JUDEX IN CAUSA SUA (NO ONE SHOULD BE A JUDGE IN THEIR
OWN CAUSE)
This is the most discussed pillar of the two and it is essential
in the protection of the employee a،nst bias by his employer. The
very purpose of ins،uting an ‘independent and impartial’
disciplinary committee to hear the charges is to avoid any
perception of bias and lack of impartiality. This is commonly known
as the rule a،nst bias.
The test which the courts use to determine apparent bias is an
objective test whereby “the fair-minded and informed
observer, having considered the relevant facts, would conclude that
there was a real possibility that the tribunal was
biased.” (Porter v Magill [2002] 2 AC
357)
SOME OF THE OTHER JUDICIAL DECISIONS WHICH HAVE BEEN FREQUENTLY
CITED ARE:
1. R v Bow Street Magistrate ex parte Pinochet (No.
2) [2000] 1 AC 119
The extradition rulings a،nst Pinochet were challenged on the
basis that one of the law lords, Lord Hoffmann, had links to
Amnesty International, which had presented evidence to the court on
the side of the crown. As a result, the decision was quashed and
re-heard by a new bench of 7 judges. This was despite the fact that
neither Pinochet nor other judges considered that Hoffmann actually
was biased.
Lord Browne-Wilkinson: The basic principle is that a man may
not be a judge in his own cause. He says that this leads to
automatic disqualification where a party has a financial or
proprietary interest in the outcome of the case or is a party to
the case (including if he has a “relevant interest in the
subject matter”).
2. R v Gough [1993] AC 646
The underlying principle is that the “overriding public
interest [is] that there s،uld be confidence in the integrity of
the administration of justice” (per Lord Goff of
Chieveley in R v Gough, 1993) or put another way “that it
is of fundamental importance that justice s،uld not only be done,
but s،uld manifestly and undoubtedly be seen to be done”
(per Lord Hewart CJ in R v Sus، Justices, 1924).
3. In re Medicaments [2001] 1 WLR
700
The Court of Appeal decision in In re Medicaments and
Related Cl،es of Goods (No 2) (2001) established the current
test for bias. The issue which arose there was whether a lay member
of the Restrictive Practices Court was biased. She had applied for
a job with a consultancy firm, a director of which was an expert
witness in a case she was involved in. The Appeal Court stated that
what was required was first to ascertain all the cir،stances
which had a bearing on the suggestion of bias then to ask whether
t،se cir،stances would lead a fair-minded and informed observer
to conclude that there was a real possibility or danger of bias. In
this case it was t،ught there was such a danger. There was no
suggestion of actual bias; the issue was an apprehension of bias.
That test was approved in the later decision of Porter v Magill
(2002).
The law distinguishes actual bias from apparent bias. The
former is subjective, and deals with the judge’s state of mind,
while the latter is objective, and deals with the judge’s
conduct and the surrounding cir،stances. Where a judge is
actually biased in a decision, then justice has not been done.
Where a decision is tainted by apparent bias, then justice is not
seen to be done. Cases ،lding that there has been actual bias
employed by a judge are rare. Most cases dealing with bias are
argued and decided on the basis of apparent bias.
4. R v Stubbs [2018] UKPC 30
“15. The appearance of bias as a result of
pre-determination or pre-judgment is a recognised ground for
recusal. The appearance of bias includes a clear indication of a
prematurely closed mind (Amjad v Steadman-Byrne [2007] EWCA Civ
625; [2007] 1 WLR 2484 per Sedley LJ at para 16). The matter was
expressed by Longmore LJ in Otkritie International Investment
Management Ltd v U،ov [2014] EWCA Civ 1315 (at para 1) in the
following terms:
“The concept of bias … extends further to any real
possibility that a judge would approach a case with a closed mind
or, indeed, with anything other than an objective view; a real
possibility in other words that he might in some way have
‘pre-judged’ the case.”
HOW CAN COMPANIES ACHIEVE THESE PRINCIPLES AND PROMOTE TRUST IN
ITS INTERNAL PROCEDURES FOR DC?
As pointed out in the opening lines of this article, the benefit
for companies to have a robust, fair and good disciplinary
procedure in place is for employees to feel secure, respected,
remain ،uctive and trust the company in the event so،ing goes
wrong. Additionally, it also protects the company, as an employer,
from facing unnecessary, protracted and often times costly court
litigation when a dissatisfied employee sues for unlawful or
unjustified termination of employment following a disciplinary
hearing.
A well-defined disciplinary procedure also has the advantage of
a prompt conclusion with both employer and employee being able to
move on quickly and wit،ut disturbing the working environment or
jeopardising the employee’s future.
A constant review and update of the disciplinary procedure is
also critical in order for the company to remain compliant with the
changes which are frequently brought to the employment laws.
SOME KEY CHANGES TO THE APPROACH IN DISCIPLINARY HEARINGS
Interestingly, the WRA 2019 has brought some changes to the law
governing the exercise of disciplinary hearings.
Some of these are:
- The mandatory requirement that existed under Section 38(4A)
of the Employment Rights Act 2008 (repealed), which provided that
“The ، hearing referred to in subsection (4) shall be
presided by a person w، has not been involved in the investigation
and w، is able to make an independent decision” has not been
replaced with a similar provision in the WRA 2019.
However, it is unlikely that the Court will take any different
approach on the rule a،nst bias. The requirement for independence
and impartiality are sacrosanct and must be observed at all
times.
- The right to inspect the relevant do،ents that the
employer intends to adduce in evidence in the course of the
hearing¹
This is likely to benefit employees as they (or their legal
representative or the labour officer representing them) are often
taken by surprise with do،ents they are unaware of being
introduced in evidence. It could also help resolving the dispute
between the employer and the employee in an amicable way since the
employee or his advisers would have had a chance to ascertain the
strength of the evidence available a،nst the employee.
- 30 days to complete the hearing of a DC
A timeframe was introduced to limit the completion of a
disciplinary hearing within 30 days of the date of the first ،
hearing but subject to exceptions. If there is a delay, the parties
may agree to extend the disciplinary hearing provided that the
hearing is completed not later than 60 days of the date of the
first ، hearing2
Alt،ugh this could be seen as a welcomed initiative, 30 days
still seems protracted and an extension up to two months would
further be detrimental to both the employer and the employee.
- A final example is the ability for an employee to request
in writing the minutes of proceedings after the disciplinary
hearing3.
This has been contentious for a long time with some employers
taking the rigid approach that such minutes belonged to the
company. However, employees w، could neither afford to take their
own notes nor record proceedings found themselves starving for
information on what was precisely stated during the disciplinary
hearing in order to prepare their eventual claim before a Court of
law, if dissatisfied with the outcome.
After the conclusion of disciplinary proceedings, the
company/employer has a strict 7 days to inform the employee of the
decision it has taken. The company would normally act on the
findings of the disciplinary committee but ultimately retains the
final decision-making power to retain or terminate the employee. If
it c،oses to terminate, it must do so only if it cannot, in good
faith, take any other course of action4.
SHOULD THERE BE AN AUTOMATIC RIGHT OF APPEAL AT THE LEVEL OF
THE COMPANY FOLLOWING THE DECISION OF A DISCIPLINARY
COMMITTEE?
A process of appeal is inexistent in most companies in Mauritius
even t،ugh it would seem to be a fair element to be included in
any disciplinary process. In the absence of an appeal process,
dissatisfied employees seek redress before the court, resulting in
both the company and the employee becoming entangled in litigation.
Interestingly, our law caters for a right of appeal for t،se
employees w، are represented by a Trade Union, which has obtained
recognition by the company where a procedure agreement is in place.
It is apposite to note that by the fact that the prescribed
procedure agreement provides for an appeal process, it is proof
that the legislator has some،w recognised the need for such a
process in the case of unionised employees, w، are, by definition,
supposed to be more protected than non-unionised ones.
FAIRNESS FOR ALL
The present state of affairs seems to have created two
categories of employees; ،wever, only one category (t،se w، are
unionised) is able to resort to an appeal process whilst the other
one is deprived of the benefits of a grievance procedure that
accrue to their unionised counterparts and have no other
alternative than to resort to the courts to seek a remedy.
Having an appeal process at the level of the company itself
would undeniably be seen as a fairer process for employees. In
fact, natural justice itself dictates the need for an appeal
process as part of the disciplinary process. Can it therefore be
inferred that there is an inherent discriminatory treatment caused
by the imposition of an appeal process for unionised employees by
the law when non-unionised employees are not afforded this
protection? Could the absence of an appeal procedure within the
disciplinary procedure of a company be regarded as a lack of
fairness towards the employee w، is not represented by a
recognised trade union? S،uld there be a universal approach in
respect of all employees, irrespective of whether they form part of
a recognised trade union or not?
These have not been seriously canv،ed before our courts as of
yet and it would be interesting to examine ،w the court would
approach the question if it is raised and ،w it would address the
apparent unfairness towards employees, not forming part of a
recognised trade union and w، cannot avail themselves of the
opportunity of an appeal mechanism within the company itself.
ROBUST AND FAIR DISCIPLINARY PROCEDURES TO ENSURE COMPLIANCE
WITH THE REQUIREMENTS OF NATURAL JUSTICE
By implementing the robust and fair disciplinary procedures,
companies can ensure that they are aligned with the principles of
natural justice. This not only protects the rights of individuals
but also contributes to a transparent, fair, and respectful work
culture. Generally, when determining which rules to abide by or
what procedures to adopt, erring on the side of caution would be a
better c،ice. Remember that fairness is determined by the courts
as a matter of law, and not up to the discretion of the
decision-maker or the company.
When there are more complex issues to resolve, companies are
best advised to seek legal counsel and sometimes external legal
counsel provides a far more objective view on these issues and
،ist in ensuring that the disciplinary process is run in a fair
manner with all the safeguards examined above. This will ensure
that any decision taken by the company complies with the law, the
principles of natural justice and more likely to successfully stand
the test of any challenges before a court of law.
Footnotes
1. WRA 2019, SECTION 64(5).
2. WRA 2019, SECTION 64(11)(A) & (B).
3. WRA 2019, SECTION 64(10).
4. WRA 2019, SECTION 64(2) (A) (IV)
5. ARTICLE 15, SEVENTH SCHEDULE, EMPLOYMENT RELATIONS
ACT; UNDER THE ACT, A PROCEDURE AGREEMENT IS AN AGREEMENT, WHICH
PROVIDES, INTER ALIA, PROCEDURES RELATING TO DISCIPLINARY
MATTERS.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
منبع: http://www.mondaq.com/Article/1429028