Natural Justice Demands That You Give Employees the Opportunity to Defend Themselves
The Law of Natural Justice demands that organizations give employees the opportunity to prove that they are not at fault, that there are proper justifications for the way they acted or conducted themselves.
It is a natural law.
Dealing with people is not easy. This is especially true when you have to make a decision that can affect the future of your employees.
The decision becomes more difficult when the person concerned is a good and productive employee who never had any problem before.
The natural law can assist you to exercise fairness and justice in every action and decision.
There is a principle under natural justice that a person is presumed innocent until proven guilty
The two principles of natural justice also apply in the workplace.
It is easy - and seemingly natural - to conclude that an employee is wrong when the circumstances appear to show that it is so. Do not get trapped into this type of thinking.
Your Employee's Right To Be Heard
The first principle is expressed in the Latin maxim "Audi alteram partem" which means "Let the other side be heard".
It is not only unfair but wrong to consider a person wrong until it is shown clearly that he or she is truly at fault AFTER hearing his or her side of the story.
Justice Must Be Seen To Be Done
It is not enough that the employee is heard.
The second principle of this law is intended to eliminate any appearance of a wrong and unfair decision being made.
This is expressed in another Latin maxim "Nemo Judex In Causa Sua", meaning "No man is permitted to be judge in his own cause".
Anyone who is a party to an event is prohibited from getting involved in any deliberation as to whether a certain person is wrong or not.
For example, a manager who has reported that an employee in his section has done something wrong cannot sit in any capacity to
decide upon the case.
Ensuring that the Natural Justice Principles Are Followed
It is well and fine that the employee who is "at fault" is given a "Show Cause" letter. This forms part of the first principle.
If your organization accepts the explanation, the matter ends there.
Management may consider the employee's explanation as inadequate. It may not demonstrate that the employee is not at fault.
It is put in legal terms as: "There is a prima facie case" against the employee. If this is so, follow a series of steps in the interest of justice and fairness.
Give the employee an opportunity to explain in person during a hearing. Listen to the employee's explanation which may contradict the negative report made against him or her.
The employee concerned can bring along people who can shed light on the incident before members of the disciplinary panel.
Important things to remember:
- Follow your disciplinary rules and procedures. Failure to do so is fatal if the case goes before an industrial tribunal.
- Do not allow any external factors to influence decision at
any stage of the process.
- Treat the employee as innocent until found wrong.
- Do not delay too long in disposing off the case against the
- Prevent anyone who was involved in the case or has an interest in its outcome from any involvement.
- Ensure that the decision on the case is unbiased and made in good faith.
- Allow a union official to represent a union member before
the disciplinary panel if this is what the employee wants.
- Always provide avenues for appeal on the decision of the panel.
When the misconduct is too serious to allow the employee to continue working, issue a suspension letter for the period
allowed under the rules.
Put the employee on notice that he or she is to attend a hearing on a date and time you will make known on a later date.
These are some of the things you can do to satisfy the requirements natural justice.
In the sphere of Industrial Relations, natural justice is one of the factors to take into consideration in dealing with problematic employees.
The Critical Time to Truly Exercise Natural Justice
Your organization may have always exercised fairness in all dealings with employees on a day to day basis.
However, when an employee is reported to have committed a serious misconduct this is the time to truly follow the law of natural justice.
In such a case, there is a real risk of taking a hasty action and making the wrong decision.
Carefully prepare a plan.
Discuss with the right people. Gather all relevant
information according to the rules and procedures.
Arrange for the necessary appointment of officials to facilitate the hearing. Appointments must follow the approved rules and procedures.
And proceed according to your plan. Oversee every stage of the process until concluded successfully, right up to the final avenue for appeal.
In cases involving criminal acts, report immediately to the authorities concerned. Failure to do so can invite other problems.
A case like this is tricky. The law may provide that you cannot hold any domestic inquiry on the matter. The only thing that your organization can do is to suspend the service of the
employee for the duration of the employee's detention.
It is possible that you can hold an inquiry for the purpose of suspending the employee's service. This is a better option than making a management decision. However, your policies may allow for the former.
Your organization is strongly urged to obtain the necessary legal advice.
Usually, you have to pay the employee half pay until the case against him or her is disposed off.
If the employee is not found guilty of the criminal charge, the law requires that your organization re-instate him or her and pay all the unpaid salaries.
If the employee is found guilty, then your organization can take steps to initiate dismissal.
Ensure that you follow your organizational rules and procedures and any legal provision. At all times.
Image of a Fair and Just Employer
When you follow the law of natural justice, you can improve your image as a fair and just employer.
This law is intended to protect the rights of your employee.
But by being fair and just, your organization also derives a benefit in the long term.
Taking disciplinary action against an employee is disquieting. It is a negative act having both negative and positive impacts.
Failure to take action is worse. Your organization is in danger of losing control and trust among your employees.
Take disciplinary action if you must. But satisfy the requirements of the law of natural justice.
Basis for the Law of Natural Justice
This law is related to the inalienable rights of a person to be treated fairly and justly.
This law is of universal application. It does not require any enactment.
It has been applied by the law courts in most countries.
In the United Kingdom, the Acas Code of Practice on Disciplinary and Grievance states that the process must provide:
- advance notice to the employee on the allegations and evidence
- the opportunity to challenge, and
- the right of appeal
(Note: Acas: Advisory, Conciliation Arbitrary Service)
Article 10 of the Universal Declaration of Human Rights states:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
There are other laws that put natural law principles into effect.
In the Best Interest of Employers
It is in the best interest of your organization to follow the natural law. It can help you avoid a lot of human resource problems and legal complications.
Make it your organizational strategic policy to practise the principles of natural justice at all times.
Click here for an article by a Learned Judge explaining the Principles of "Natural Justice"
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