HUMANITARISMO

118 Lorraine Skiffington, „The Employment Tribunal and Employment Court Three Years on…‟ (1994) 4 ELB 55, 56. See also, Ralph Gardiner, „Fronting Up – Some Thoughts about Representation‟ (1994) 8 ELB 114; Ellen Dannin, „Contracting Mediation: The Impact of Different Statutory Regimes‟, (1999) 17/1 Hofstra Labor & Employment Law Journal 65, 97–98. „In debates on the ECA, MP Ian Revell praised what he anticipated would be the informality and accessibility if the ECA and said that the Government was not interested in providing a “lawyers‟ feast”. Of course, it did just that. New representatives were attracted to mediation as a lucrative new source of income.‟

119 See discussion at para 3.2 above, and E J Dannin, „Confronting the Employment Contracts Act‟ (1997) 28 California Western International Law Journal 1, 2.

120 Lorraine Skiffington, „The Employment Tribunal and Employment Court Three Years on…‟ (1994) 4 ELB 55, 56: „With everything to lose (but probably already lost), they have invariably chosen to pursue financial compensation by legal means, and in doing so, have defeated the Act‟s intention to maintain a low-level system of dispute resolution.‟

121 The rules of natural justice bind administrative authorities to „act in good faith and fairly listen to both sides‟; Board of Education v Rice [1911] AC 179, 182, Lord Loreburn (HL). See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 847.

122 Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 194, Byles J. See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 847.

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depending on the type of procedure involved, the nature of the decision being made and the body making the decision.¹²³

The principles or rules of natural justice have been developed over the centuries in the common law and relate to the conduct of processes which courts and tribunals use in their operation.¹²⁴ For a period, the principles were given a very rigid conceptual application¹²⁵ but this narrow approach was abandoned following Ridge v Baldwin¹²⁶ and Durayapph v Fernando,¹²⁷ where Lord Upjohn indicated that the principles could be applied „upon the most general considerations.‟¹²⁸ Originally only judicial or quasi-judicial decisions were subject to the principles of natural justice, however, the modern approach is that if rights or interests are affected a decision will be subject to natural justice principles.¹²⁹

The New Zealand Bill of Rights Act 1990 states that every person „has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person‟s rights, obligations,

123 Jeffs v NZ Dairy Production Marketing Board [1967] NZLR 1057 (PC) – natural justice may operate at many different levels. See also Birss v Secretary for Justice [1984] 1 NZLR 513, 516 (CA); Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA). See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 848. For a discussion of when the principles of natural justice are likely to apply and the factors to determine this, see G D S Taylor, Judicial Review (1991) 254 and following.

124 For early examples see James Baggs Case (1615) 77 ER 127; Cooper v Wandsworth Board of Works (1863) 143 ER 414. See also, G D S Taylor, Judicial Review (1991) 251–252. For a discussion on the history of the principles of natural justice and their relationship to procedural fairness see, generally, Lord Woolf, Jeffrey Jowell, Andrew P Le Seuer, De Smith, Woolf and Jowell‟s Principles of Judicial Review (1999). See also, G D S Taylor, Judicial Review (1991) 251. Note, the common law is the law derived from judicial decisions as opposed to statute; P Spiller, Butterworths New Zealand Law Dictionary (5^th ed, 2002) 53. As Anne Boyd, Procedural Fairness in Performance Dismissals, NZ Council of Trade Unions, Occasional Papers on Employment Law, August 1997, 6, said, it therefore develops and evolves incrementally and „is never perfectly static.‟

125 See, for example, R v Electricity Commissioners [1924] 1 KB 171.

126 [1964] AC 40 (HL).

127 [1967] 2 AC 337 (PC).

128 [1967] 2 AC 337, 349 (PC).

129 See, for example, Lord Scarman in Council of Civil Service Unions v Minister for the Civil Service [1985]

AC 374, 407 (HL) said that the Courts had extended „the requirements of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act.‟ For a New Zealand example, see Stininato v Auckland Boxing Association Inc [1978] 1 NZLR 1 (CA). See GDS Taylor, Judicial Review (1991) 251–254.

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or interests protected or recognised by law.‟¹³⁰ The Bill of Rights Act has limited effect as it applies only to the three arms of government¹³¹ and it is subordinate legislation,¹³² however, the rules of natural justice are so deeply entrenched in the common law that they have been held to apply in a wide range of circumstances.¹³³

The rules of natural justice apply in different ways to various aspects of this thesis. Natural justice was incorporated into the common law contract of employment by the 1985 Court of Appeal decision in Auckland Shop Employees IUW v Woolworths.¹³⁴ Natural justice or procedural fairness was incorporated as a key element of an employer‟s disciplinary

130 New Zealand Bill of Rights Act 1990, s 27(1).

131 Executive, legislature and judiciary.

132 New Zealand Bill of Rights Act 1990, ss 4, 5 and 6 limit the application of the Act in that other legislation may supersede it if they are inconsistent:

4. Other enactments not affected –

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),–

(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b) Decline to apply any provision of the enactment –

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

5. Justified limitations –

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6. Interpretation consistent with Bill of Rights to be preferred –

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

Although the Bill of Rights is not entrenched it is likely that Parliament would experience difficulty dispensing with the right to natural justice. See Fraser v State Services Commission [1984] 1 NZLR 116, 121 (CA).

133 The Privy Council has said that the Bill of Rights Act „reinforces‟ the common law; Manakau City Council v Ports of Auckland Ltd [2000] 1 NZLR 1, 14. See also, Lumber Specialists Ltd v Hodgson [2000] 2 NZLR 347, 375, where Hammond J said that s 27(1) was „exceptionally important‟ and should be interpreted broadly. In Simpson v Police (High Court, Hamilton, AP 58/91, 17 June 1993) 13, Hammond J said that taking a narrow view of the term „natural justice‟ under the Bill of Rights Act would be „hopelessly wrong‟.

See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 848; Anne Boyd, Procedural Fairness in Performance Dismissals, NZ Council of Trade Unions, Occasional Papers on Employment Law, August 1997, 10, argues that the principles have acquired a significant constitutional status.

134 Auckland Shop Employees IUW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA). See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 858. The Court of Appeal „established that it was an implied term of the employment contract that any inquiry into alleged employee dishonesty or incompetence must be conducted in a fair and reasonable manner.‟ See also, G D S Taylor, Judicial Review (1991) 270, para 13.21. „Courts in New Zealand… have not hesitated to apply the same principles… to offices and contracts of employment alike.‟

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enquiry by the Court‟s interpretation of „unjustified‟ dismissal in Auckland City Council v Hennessey.¹³⁵ Later, as a statutory requirement it related to how the Employment Tribunal dealt with its cases and allowed judicial review of Employment Tribunal decisions on the grounds of procedural impropriety or bias.¹³⁶

3.3.2 P

RINCIPLES OF NATURAL JUSTICE DEFINED

There are two central tenets of natural justice which form the basis of the principles to be applied.¹³⁷ Firstly, the audi alteram partem rule, that no person may be condemned unheard, means that all parties must have an opportunity to present their case and to be heard by the decision maker before any decision is reached.¹³⁸ Secondly, the nemo judex in causa sua rule, or the rule against bias, that no person should be a judge in their own cause, means a neutral decision maker should determine the outcome.¹³⁹ The application of these rules could mean, for example, that a decision may be substantively correct but may

135 Auckland City Council v Hennessey [1982] ACJ 699 (CA).

136 Employment Contracts Act 1991, s 105, „Applications for review – (1) If any person wishes to apply for review under Part I of the Judicature Amendment Act 1972, or bring proceedings seeking writ or order of, or in the nature of mandamus, prohibition, or certiorari, or a declaration or injunction, in relation to the exercise, refusal to exercise, or proposed or purported exercise by –

(a) the Tribunal; or

(b) An officer of the Tribunal or the Court; or

(c) An employer, or that employer‟s representative under this Act; or (d) An employee, or that employee‟s representative under this Act, –

of a statutory power or statutory of decision (as defined by section 3 of the Judicature Amendment Act 1972) conferred by or under this Act or the State Sector Act 1988, the provisions of subsections (2) to (4) of this section shall apply.‟ Section 105(3) required that the right of appeal under this Act had to be exhausted before seeking judicial review. Under s 131 parties could apply to have proceedings before the Employment Court reviewed in the Court of Appeal. There could be no appeal from that decision – s131(4).

137 Described as the „two cardinal principles‟ by Brookers Employment Law, ER173.04.

138 „Hear the other side‟. Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 860. See also, G D S Taylor, Judicial Review (1991) 276, para 13.30 and following. To deny the opportunity to make submissions can be a breach of natural justice. See for example, R v Secretary for the Home Department, ex p Doody [1994] 1 AC 531 (HL). See, G D S Taylor, Judicial Review: A New Zealand Perspective (Supplement to the First Edition, 1997).

139 Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 874. The rule against bias is „not concerned to uphold procedural fairness‟ but „requires general impartiality in decision making‟. A decision maker who is biased is disqualified from making a decision unless the bias is disclosed and the parties waive their right to object. Bias may be actual or apparent. See also, G D S Taylor, Judicial Review (1991) 286, para 13.46 and following.

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be set aside for want of procedural fairness.¹⁴⁰ Any distinction between the concept of natural justice and the concept of „fairness‟ no longer exists.¹⁴¹ In the words of Lord Morris:¹⁴²

Natural justice is but fairness writ large and juridically. It has been described as fair play in action.

The New Zealand courts are prone to approach natural justice in a pragmatic way, using a balanced assessment according to the circumstances of the case rather than a legalistic and theoretical approach.¹⁴³ It has been stated that the significance of the case to the parties concerned will be a major factor in the level of the requirement to observe the principles of natural justice:¹⁴⁴

The level of the requirement to observe the standards of natural justice must reflect the significance and consequences of the relevant decision to those affected by it. Where the decision-making body is effectively capable of denying someone their livelihood, then the requirements of natural justice will be of a high order. Where no such weighty matters turn on the decision, less stringent standards are appropriate.

3.3.2(A)AUDI ALTERAM PARTEM – THE RIGHT TO A HEARING

a) Notice

The requirement to provide prior notice of a hearing incorporates three main factors. First, there must be notice of the time, date and place of the meeting itself. Second, adequate notice must be given of the issues to be decided, in sufficient detail for the receiving party

140 Board of Education v Rice [1911] AC 179, 182 (HL) Loreburn LJ. The principles of natural justice impose a duty to „act in good faith and fairly listen to both sides.‟

141 See, G D S Taylor, Judicial Review (1991) 252–254, paras 13.02 and 13.03. „The terms “fairness” and

“natural justice” are used interchangeably to protect rights or expectations that are not repugnant to a particular statute or to the law.‟

142 Furnell v Whangarei High School Board [1973] 2 NZLR 705, 718. See, G D S Taylor, Judicial Review (1991) 252–254, paras 13.02 and 13.03.

143 Re Erebus Royal Commission [1981] 1 NZLR 614, Woodhouse, McMullin JJ. See also, Russell v Duke of Norfolk [1949] 1 All ER 109, 188, Tucker LJ; „the requirements of natural justice must depend upon the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.‟

144 Auckland Boxing Association v New Zealand Boxing Association [2001] NZAR 847, 859, Priestly J.

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to be able to respond;¹⁴⁵ including any allegations or charges made;¹⁴⁶ and any potential outcomes or orders to be made.¹⁴⁷ Finally, sufficient time must be provided for the parties to prepare a case in response with either written or oral submissions or both.¹⁴⁸ This includes time to respond to any new information that may arise during a hearing including the need for an adjournment to allow adequate time to prepare a rebuttal.¹⁴⁹

b) Disclosure of relevant and probative evidence

The decision maker is required to disclose all relevant evidence which they may rely upon.

A failure to comply with this principle may be deemed to be a breach of natural justice.¹⁵⁰ This includes any information obtained from an outside body or expert whose knowledge or opinion may be relied on in the decision making.¹⁵¹ However, in some circumstances a strict disclosure requirement may be mitigated by the availability of a fair hearing, especially if it is found that the plaintiff already had knowledge of the relevant information

145 Failure to adjourn a hearing where inadequate details had been provided was deemed to be denial of a fair hearing in Hillier v Lyttelton Borough Council, unreported, High Court, Christchurch (Hardie Boys J), CP 149/86, 18 June 1987. See G D S Taylor, Judicial Review (1991) 278.

146 Murdoch v NZ Milk Board [1982] 2 NZLR 108. See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 860.

147 Air New Zealand v Mahon [1983] NZLR 662 (PC). See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 861 and G D S Taylor, Judicial Review (1991) 276–281.

148 Whether written and/or oral submissions are allowed may depend on the type of hearing and what is fair in the circumstances. Formal oral submissions were found to be necessary in Lambourne v Commercial &

Private Agents Board (1980) 23 SASR 475; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587; Perron v Central Land Council (1984) 6 FCR 226. See, G D S Taylor, Judicial Review (1991) 276–81; See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 861.

149 Priddle v Fisher & Sons [1968] 1 WLR 1478. Refusal to allow an adjournment to prepare a case may be a refusal of a fair hearing. See G D S Taylor, Judicial Review (1991) 278–279. See also, Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 860–861.

150 Rich v Christchurch Girls‟ High School Board of Governors (No 1) [1974] 1 NZLR 1 (CA). See also Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 862. See Chapter 5.4.14 for comments on appeals from Employment Tribunal decisions.

151 See Mockford v NZ Milk Board, unreported, HC Dunedin, 14/10/81, Roper J, where the Milk Board disclosed a report of Mockford‟s alleged transgressions which he had not seen or had the opportunity to respond to before the hearing. See also, Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) and Byrne v Auckland Irish Society [1979] 1 NZLR 351. See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 861. The full report should be disclosed rather than a summary of its findings.

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prior to the hearing.¹⁵² Further, both parties must be given the opportunity to present evidence relevant to their case. Failure to allow such an opportunity may amount to a breach of natural justice.¹⁵³ However, refusal to allow irrelevant evidence would not constitute a breach.¹⁵⁴ The onus of observing principles of natural justice may be heavier where the other party is unrepresented or has no legal counsel.¹⁵⁵ The application of these rules will vary according to the nature and context of each case.¹⁵⁶

The decision maker must make their decision based on relevant evidence which has been placed before them. There must be a factual foundation¹⁵⁷ for the decision but the weight given to the facts is a matter for the decision maker to determine.¹⁵⁸

c) Warning of a potential adverse finding

A decision maker has a duty to warn a party if it is likely that the result of the hearing will be an adverse finding against them, particularly if it may result in negative findings about the reputation or credibility of the party or affect their property or livelihood.¹⁵⁹ Procedural fairness requires that the other party be able to take appropriate advice and have the ability to respond to the seriousness of the consequences.¹⁶⁰ If, during the hearing, it is obvious to the parties that credibility is in issue, the duty may not arise.¹⁶¹

152 Travis Holdings Ltd v Christchurch City Council [1993] 3 NZLR 32, 47–48. See also Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 861.

153 See R v Hull Prison Board of Visitors, ex p St Germain (No 2) [1979] 1 WLR 1401 (DC) where „the visitors refused to allow witnesses to be called because of the administrative inconvenience of bringing them in from other prisons.‟ See G D S Taylor, Judicial Review (1991) 279.

154 Byrne v Kinematograph Renters Society [1958] 1 WLR 579 (ChD).

155 Terry v District Court at Greymouth (1992) 10 FRNZ 135. See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 862.

156 For a description of the variables that may apply within the provision of adequate information, see Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 862–863.

157 R v Deputy Industrial Injuries Commissioner; Ex p Moore [1965] 1 All ER 81, 94 (CA).

158 Ibid. See also Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 869.

159 Re Erebus Royal Commission [1993] 1 NZLR 662 (PC). See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 863.

160 Ibid.

161 Khalon v A-G [1996] 1 NZLR 458, 466 (HC): „If an adverse finding is foreseeable there is no surprise.‟

See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 863–864.

145 d) Representation

The rules of natural justice do not give a general right to representation in all situations.¹⁶² An exception in the employment context is situations involving young vulnerable workers.¹⁶³ However, representation is seen as promoting access to justice, as representatives ideally possess skills in presenting their clients‟ cases, examining and cross-examining witnesses and presenting legal arguments in a persuasive manner.¹⁶⁴ However, it is possible to surmise that the use of representatives and adherence to a formal legal process increases legalism and formality and may lead to increased costs.¹⁶⁵ In general, tribunals and administrative bodies have the discretion as to whether or not to permit representation,¹⁶⁶ unless specifically excluded by statute.¹⁶⁷ Failure to exercise such discretion to allow representation or exercising it unfairly may be grounds for a judicial review or grounds of procedural unfairness in an employment context.¹⁶⁸ In determining whether or not to permit representation an authority should consider, among other things,

162 Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 864; GDS Taylor, Judicial Review (1991) 280–281.

163 Wellington Road Transport etc IUW v Fletcher Construction Co Ltd [1983] ACJ 653 and NZ IHC etc Staff Union v NZ Society for the Intellectually Handicapped (Inc) [1990] 2 NZILR 1089.

164 See below sub-para (e) for discussion of cross-examination. See Chapter 6.7 for adjudicator comments on the expertise of representatives.

165 See para 7.4.1 below for discussion on legalism, formality, cost and delay and 7.4.2 for the impact on costs. See Chapter 5.8.3 for factors adjudicators took into account when awarding costs. See Enderby Town Football Club Ltd v Football Assn Ltd [1971] 1 All ER 215 (CA), Lord Denning MR. Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 865, describes Lord Denning in Enderby as „questioning whether legal representation leads to excessive technicality, obfuscation of issues, expense and delay. He thought justice could often be done better by a good layperson than a bad lawyer, when either party could apply directly to the court for guidance on questions of law or construction.‟

166 Maynard v Osmond [1977] 1 QB 240, 252 (CA); R v Maze Prison Board of Visitors, ex p Hone [1988]

AC 379 (HL). See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2^nd ed, 2001) 865. See also, G D S Taylor, Judicial Review (1991) 281 and G D S Taylor, Judicial Review: A New Zealand Perspective (Supplement to the First Edition, 1997) 94.

167 See, for example, Maynard v Osmond [1977] 1 QB 240 (CA) and Midwood v Paremoremo Medium Security Prison Superintendent [1991] 1 NZLR 442 (CA) where regulations excluded the right to representation where a rapid decision was required. To exclude the discretion to allow representation

167 See, for example, Maynard v Osmond [1977] 1 QB 240 (CA) and Midwood v Paremoremo Medium Security Prison Superintendent [1991] 1 NZLR 442 (CA) where regulations excluded the right to representation where a rapid decision was required. To exclude the discretion to allow representation

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