This item appeared in the Otago Daily Times on 27 March 2021: https://www.odt.co.nz/business/fairness-vital-solving-problems
One recent school morning, my cherubs reached a new level in their ongoing sibling love/hate relationship.
They were fighting about whether they were fighting or not and they asked me to decide who was right. I made a quick decision - I told them to shut up and get in the car.
Perhaps an understandable parenting moment (I needed a quick solution for the school run), but I did not follow a great decision-making process. Although the principles of natural justice are common sense I didn’t follow them in my emotional state because:
1. I was biased against the little darling who pushed my buttons the most; and
2. I didn’t give the girls a fair hearing as I simply wanted the fighting to stop.
This story resembles many of my clients’ stories in business. They need a quick, short-term solution to fix a conflict between staff or a difficult issue with someone they are in contract with.
But it is like plugging a leak with bog: it will only fix the underlying problem for so long.
I can advise on better ways of resolving conflict or working through challenging relationship issues, but the topic of this article relates to the principles of natural justice which public bodies or incorporated societies need to follow when making decisions.
They are also good principles for businesses and other organisations to adopt.
What is natural justice?
New Zealand has inherited many of the principles of the English legal system, some of which go back to Roman law, which is where natural justice principles came from. They were regarded as principles that were natural or self-evident, being:
1. ‘‘the right to be heard’’ - hold a fair hearing; and
2. ‘‘no person may judge their own case’’ - do not be biased.
Decisions made by public organisations that affect the rights or interests of any person are subject to the rules of natural justice. They need to be independent and impartial and the procedure is required to be fair
No matter what statutory provisions govern the actions of the public sector, the principles of natural justice will apply. For example, when councils assess tenders or applications for funding, unless they follow these principles they may be subject to a judicial review.
That is when an interested party applies to court for a decision of an entity (usually a public body) to be reviewed and set aside. Such a situation causes uncertainty for the entity, is often prolonged by appeals, and can cause significant negative public perceptions.
The right to a fair hearing requires that participants in the justice system should not be penalised by decisions that affect their rights unless they have been given:
1. prior notice of the matter in question;
2. fair opportunity to answer it; and
3. the opportunity to present their view properly.
Some organisations will let a person participate in making decisions if they have disclosed the nature of the conflict and the other decision makers are comfortable with that person still being involved.
However, if the decision in question is sensitive (like a complaint), then I recommend you err on the side of caution. The key principle here is the person’s right to a fair and impartial determination of their issue.
This means none of the decision-makers can have a financial or any other kind of conflict of interest, real or perceived. Also, if the decision-maker has an ownership or personal interest in the matter then the law may imply that they are biased, suggesting that their decisions are not impartial.
The suspicion of bias can create a deep sense of suspicion and ill-will. Applying the principles of natural justice reduces the risk of actual or perceived bias.
How to ensure natural justice is applied
Generally, when an organisation holds meetings, they should follow a formal process, as set out in their rules of association. All meetings must be properly convened and run to ensure fairness to all those affected by the decisions being made.
As an example, a parent is unhappy with a decision of a school principal about a staff or student matter and she complains to the school’s board of trustees. The board should then follow the principles of natural justice when reviewing the principal’s decision.
To ensure that happens, the board should:
1. Have a complaints policy setting out a fair and balanced process which is publicly available, for example on the school website.
2. Follow the policy, which may include calling an independent reviewer in.
3. Follow any other relevant process, such as one in an employment agreement.
4. Ensure that anyone with a conflict of interest is not involved in the process. For instance, if the complainant’s relative or spouse is on the board, they should not take part in relevant discussions or see relevant paperwork.
5. Keep an open mind until the board has heard from everyone, looked at all relevant information, and not taken account of irrelevant information.
6. Let the person whose decision is being reviewed or who is the subject of the complaint know what the allegation or complaint is, and who is making it.
7. Let them have a chance to respond fully to any allegations. For instance, this includes being given a chance to ask questions about any allegations and to respond to an adverse finding about the matter, before a final decision is made.
8. Give them a right have an advocate or support person.
9. Give them reasons for the decision, not just a message the board has ‘‘considered the complaint and has decided to dismiss it’’.
10. Give them the right to complain, or ask for a review or appeal. Mediation is also an option, often a softer process which is better for maintaining business relationship and is more suitable not-for-profit organisations.
For both public and private organisations, the results of incorrect decision-making can be costly, if not disastrous. Where a decision is successfully challenged, it can lead to the process being undertaken again from scratch and the subsequent costs (including court costs) involved in the challenge.
It is definitely worth getting the fairness processes right in the first place, as fixing them up later can be time consuming, stressful and financially damaging.
Also, if you follow a fair process people have confidence in the decision you make, even if they do not necessarily agree with it. They feel heard.
They might even not have a fight for the sake of fighting like my daughters.