It is often said that justice should be both ‘done’ and ‘seen to be done’.
In other words that a defendant should not only be treated fairly, but also shown such consideration that they appreciate and understand fairness and natural justice has been satisfied. Fine sentiments for sure, but what do this mean in practice?
These are tips designed to ensure fairness in both senses:
- If there is a panel, decide who will be chairperson.
- Have someone present to take notes as the meeting progresses.
- All present must be polite and respectful toward all others.
- If anyone becomes upset, show sympathy and allow a break for them to compose themselves.
- Identify the issues to be decided at the outset and list them. Ideally all present agree the list.
- Structure the meeting by explaining what will happen and in what order (e.g. opening statements, witness evidence, questions, closing submissions, breaks, deliberation, etc).
- Explain that only one person may speak at a time and that the note-taker must be taken into consideration (i.e. speak clearly and slowly enough for a good summary note to be taken).
- If there is a lot to get through, timetable the meeting and get both parties to agree how much time they will need for each stage. Hold them to their time-slots (unless fairness requires more time).
- If witnesses are to be called, accommodate them in another room until they are required.
- Allow for ‘comfort breaks’ and short recesses to allow parties to confer with their advisors or each other.
- Be willing to adjourn the meeting to take advice (by phone or from an advisor who is present) about a point of procedure.
- Explain that any concerns about fairness in the procedure should be raised in the meeting and that the disciplinary hearing officer / chairperson will hear submissions and rule on them in the meeting.
- Keep the adequacy of the investigation (i.e. evidential documents, statements, etc) under close review. If anything is missing that could be relevant either: (i) adjourn to allow more investigation, or (ii) follow it up after the hearing.
- Whenever more investigation is undertaken, make sure both management and the employee have been given copies and invited to make additional submissions.
- Hold off from deliberations (making findings of fact and drawing conclusions) until you are sure all relevant evidence is available.
- Deliberate in private and after time for reflection.
- Where facts are in dispute, decide what happened on a ‘balance of probability’ basis (i.e. what is more likely to be true) and give reasons for preferring one version over another.
- When all disputes on the facts have been resolved, decide what the facts you have found actually mean (i.e. don’t assume they amount to misconduct, or poor performance without careful analysis).
- Address all of the issues that were agreed at the outset.
- Don’t be rushed to judgment at the end of the hearing. Draft findings and conclusions in writing and only send these out when you are entirely satisfied that they are correct.
- Be scrupulously careful to avoid any impression that the outcome has been pre-determined.
Things to ask
- In relation to witness statements that are provided in writing only “Are there any other questions you would like to be put to the witnesses?”
- After a witness has given evidence “Is there anything else you would like to ask the witness?”
- When inviting closing submissions from the employee (or his / her representative) “Please include any mitigating circumstances in your submissions so we can take these into account” and…
- … “Now that you have heard all of the evidence and considered your responses, if you wish to make any concessions please make it clear that you are doing this before you explain further.”
- Generally in relation to submissions “Before making each submissions please identify the issue you are addressing (i.e. from the agreed list).”
- At the end of the meeting “Have you been given an opportunity to say everything you want to say?”
- (if the answer is “no”) “What else would you like to say?”
- At the end of the meeting “Do you feel you have been treated fairly in this meeting?”