See ASSOCIATED NEWSPAPERS OF ZIMBABWE (PVT) LTD & ANOR v DIAMOND INSURANCE CO (PVT) LTD 2001 (1) ZLR 226 (H) and Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S). The court having examined the grounds of appeal and arguments held that the employee had been accorded a full hearing and given the right to bring his own witnesses which he declined to do so. In Macmillan and Others v Provincial Magistrate Harare and Others ( HH 49-2004 ) Hungwe J had occasion to consider the test for bias in judicial proceedings (in that case, an allegation of bias was made against a presiding magistrate). 2.6 Manner in which the whole disciplinary process is conducted. However, this happens to be the situation in all misconduct cases. If you don’t want your investigation failing because you’ve stumbled into the sticky trap of “investigator bias”, take note of these lessons from Qantas in a ruling by the Fair Work Commission early this month. The court further reaffirmed its position in the celebrated Danly mine case that disciplinary proceedings should not be determined on technicalities alone. A conflict of interest that could lead to a perception of bias may occur in a number of circumstance including but not limited to; A complaint of bias as a result of a conflicted of interest (actual, potential or perceived) may be hard to avoid if the matter is conducted internally. Nor can such adjudicating officer share the same counsel with one of the parties. The reason is simple: the first adjudicating officer may be biased against his/her initial decision. ( Log Out / The Supreme Court made a distinction between judicial officers (officers of the courts such as magistrates and judges) and administrative tribunals. (2) The suspicion must be that of a reasonable person in the position of the accused or litigant. That being said, it always a good idea to err on the side of caution when dealing with issues of bias in disciplinary proceedings. Yet mere allegation of bias will not suffice. Report an Issue | Following a disciplinary hearing, Mr Aplin was dismissed with immediate effect. Facts of the Case … An investigation is to: see if there is a case to answer. See Dabner v S.A. Railways and Harbours1920 AD 588 at 598. It appears that every effort was made to give the first applicant a fair opportunity to be heard before an impartial tribunal…”. After an investigation, the employer might find there's no evidence to carry on with the disciplinary or grievance procedure. If you feel that you have any sort of conflict of interest declare it, manage it or withdraw from the investigation. This is known as an ‘investigation’. The employee had been given adequate time to argue his case before the disciplinary chairperson. Approach the investigation with an open mind. Leave your comments below and let’s discuss! Review and analyse all the evidence carefully, this requires a high level of skill and experience, an understanding of evidence and evidence law and the standard of proof in civil matter (on the balance of probabilities). What is essential is that the tribunal should be impartial, and that persons affected by the tribunal’s decision be given a full opportunity to present their cases and controvert those against them; this is the essence of fairness. The principles are discussed in detail below. This does not mean that the adjudication officer will be an impersonal adjudicator who is not subject to having his judgement potentially clouded by prior interaction with any of the parties. Gonyora did not press the comparison. conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigation.’” Williams-Boldware v. Denton County, Tex., 741 F.3d 635, 640 (5th Cir. I am a Management and Labour Consultant with experience in training, advising, and the Alternative Dispute Resolution system of Zimbabwe. It is not for him to enter into the merits of the case or to defend his decision. See G Feltoe “A guide to Administrative and Local Government Law in Zimbabwe” (Legal Resources Foundation, 2009, pages 64-65). However in another case the Supreme Court although acknowledging that there had been animosity between the Regional Hearing Officer and counsel for the employer, did not come to the conclusion that the former had been biased. Workplace investigations are defined as "an unbiased gathering of evidence" and to ensure that that a complaint of bias is not raised or substantiated it is important to follow these rules; Workplace Investigation biased process actual or perceived is often as a result of an inexperienced investigator who lacks the confidence or competency to understand and carry out the investigative process. The court stated that: “While it is true that the duty to act fairly and listen to both sides lies upon everyone who decides anything, one should be careful not to treat administrative tribunals as though they were courts of law…The test in matters of this nature is whether the hearings were fair when proceedings are judged in their broad perspective. The botched workplace investigation. Clustering illusion is the intuition that random … This is especially so where the code of conduct is flexible on the role of the disciplinary authority.  This was in terms of S.I 371 of 1985, where an employer who intended to terminate an employee’s contract of employment had to apply to the Minister for approval. Never allow any personal preferences good or bad about anything relevant to the investigation to cloud your judgement. There are other matters to consider when you are appointing an external workplace investigator are addressed in these articles - Workplace Investigator who do I choose and why? ( Log Out /  The courts have sometimes distinguished between “real likelihood of bias” and “reasonable suspicion of bias.” Such discussion is beyond the scope of this article. Do not make any judgements on the truthfulness of any of the parties versions of events until all the evidence has been gathered.  Per Robinson J (as he then was) at page 377. Employers often work hard to ensure that a disciplinary chairperson is neutral. It casts tribunals too rigidly in the mould of courts of law. Two recent cases remind employers that, even if the decision-maker is entirely fair and unbiased, the prejudice of others can land the employer in hot water. Though both have the duty to act fairly and give both sides the opportunity to present their cases, the latter are largely laymen who cannot be expected to observe all the legal niceties observed by the courts of law. Let’s be honest. Thus where a party does not raise any objections then such party cannot rely on the ground of likelihood of bias on appeal. Such an act is likely to be seen by the other party as the adjudicating officer being partisan or “ganging up.” It is not the duty of the adjudicating officer to defend his position on appeal. This would be akin to one being the investigating officer, prosecutor and judge at the same time. Carrying on with the disciplinary or grievance procedure. Gather all the evidence, not just the evidence that supports the complaint, Do not form a theory and then seek evidence to support your theory only. Upon completion of the investigation, a hearing was scheduled before Purdue’s Advisory Committee on Equity. Managers at the Iowa Occupational Safety and Health Administration acted with “express bias” when they opened a disciplinary investigation into Travis Stein for missing a … The allegation of bias similarly diminishes where it is shown that the employee admitted to the misconduct complained of or was properly found guilty of such charges. in the case of Diamond Mining Corporation v Foster Mukwada and 2 Ors LC/MC/16/14, the Labour Court found that the arbitrator had been biased in the way he had handled the proceedings. Indications that he/she has already determined the matter in one way or Another Another 1993 ( 2 ZLR. Other things I have missed or something that has occurred [ 2 ] See v! 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