It is critical to ensure that disciplinary procedures in place not only adhere to the legal provisions that govern an employer-employee relationship 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. Those principles serve to safeguard employees from any arbitrary or unfair treatment by their employer when something 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 without 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 legitimate expectation to be treated fairly when his employer accuses him of a serious shortcoming 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 assessed when there is an allegation of misconduct made by an employer against 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 against charges levelled against 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 against 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 against 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 against bias by his employer. The very purpose of instituting 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 against 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 against 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 should 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 should not only be done, but should manifestly and undoubtedly be seen to be done” (per Lord Hewart CJ in R v Sussex Justices, 1924).
3. In re Medicaments [2001] 1 WLR 700
The Court of Appeal decision in In re Medicaments and Related Classes 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 circumstances which had a bearing on the suggestion of bias then to ask whether those circumstances 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 thought 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 circumstances. 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 holding 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 Urumov [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 productive and trust the company in the event something 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 without 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 oral hearing referred to in subsection (4) shall be presided by a person who has not been involved in the investigation and who 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 against bias. The requirement for independence and impartiality are sacrosanct and must be observed at all times.
- The right to inspect the relevant documents 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 documents 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 against 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 oral 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 oral hearing2
Although 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 who 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 chooses 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 though 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 those employees who 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 somehow recognised the need for such a process in the case of unionised employees, who 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; however, only one category (those who 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 who is not represented by a recognised trade union? Should 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 canvassed before our courts as of yet and it would be interesting to examine how the court would approach the question if it is raised and how it would address the apparent unfairness towards employees, not forming part of a recognised trade union and who 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 choice. 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 assist 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.
¹WRA 2019, section 64(5).
²WRA 2019, section 64(11)(a) & (b).
³WRA 2019, section 64(10).
4WRA 2019, section 64(2) (a) (iv)
5Article 15, Seventh Schedule, Employment Relations Act; Under the act, a procedure agreement is an agreement, which provides, inter alia, procedures relating to disciplinary matters.
