21 September 2015
A popular topic in the news in recent times has been the concept of “apprehended bias”.
The issue has arisen at the ongoing Trade Unions Royal Commission, where there was an Application that the Commissioner should disqualify himself.
However, this rule does not only apply to judges or legal adjudicators.
At a practical level, the right to an unbiased hearing can apply to an employer’s decision to terminate, demote or sanction an employee, which is a not uncommon occurrence in the workplace.
It is not necessary to show that the employer is actually biased, but that there is a reasonable apprehension of bias.
So what does reasonable apprehension mean in practice?
This is where the issue becomes complicated.
The legal test is that a fair-minded lay observer (a hypothetical person looking at the situation in an informed and objective fashion) might reasonably apprehend that the employer might not bring an impartial mind to the resolution of the dispute in question (that is, the termination, demotion or sanction of the employee).
If the employee believes that there is a reasonable apprehension of bias, he or she needs to identify exactly what it is that may cause the employer to be biased, and the connection to its decision.
At the same time, the right to an unbiased hearing can be altered in certain circumstances, taking into the account the size of the employer and whether it has a separate human resources department.
For example, it could generally be expected that a large company should follow formal investigative processes, and that decision makers would have a degree of separation from employees about whom decisions are made.
This is a a complex area of the law, and it is important that you seek legal advice to ensure your rights are preserved in the unfortunate situation where you are in dispute with your employer.