Employment by the State or by government agencies is often regulated by an Act or by rules which must be specifically observed, or which otherwise imply the observance of the principles of natural justice.
Unless the Act or other regulations under which a person is employed expressly, or by implication, forbids the application of what are called the rules of natural justice, the courts will infer that the Parliament intended those rules to be observed and, if in some action (such as dismissal) they are not observed, the action is of no effect. In other words, unless the Act or rules sufficiently indicate to the contrary, a statutory power to make a decision adversely affecting the rights, property or legitimate expectations of a person must be exercised in accordance with the rules of natural justice, and a decision to terminate employment is a decision to which those principles will apply, see complaints against government.
What constitutes the observance of natural justice in all cases cannot be simply stated. The law requires fairness from a person exercising an administrative power. This is not something that can be set down in anticipation or in a fixed body of rules, as what is fair in any given situation depends on the circumstances. The courts have held that the principles of natural justice are more strongly implied when the decision might adversely affect the person's reputation and that, if the rules and standards of natural justice have not been observed, it is irrelevant to inquire whether the decision reached was a correct one as the decision, being tainted by the failure to observe the proper procedures, is void.
The courts have held that the minimum requirements for natural justice in the case of termination of employment must include:
- disclosure to the employee of all matters alleged as grounds for the termination, in a manner sufficiently specific to enable the employee to make a full and detailed response. Where serious allegations are made it is not sufficient for the employer merely to ask the employee questions about the allegations - the employee is entitled to know the full details of the allegations
- giving to the employee the opportunity to show any inaccuracy in any factual matter alleged
- fairness must not only be done but must be seen to be done, and the employer must be free of any bias.
The courts have also held that a person who is employed on probation is entitled to be heard before a decision not to confirm the employment is made on grounds that relate to the person's work performance.
Some people are employed in public or statutory authorities which are created by Acts of Parliament and are often controlled by Regulations made under the Acts. Usually the specific legislation contains detailed provisions on both employment and dismissal procedures. When an employee is dismissed, the authority must strictly follow these procedures. Further, the person carrying out the dismissal must be authorised to do so. Unless all necessary steps are observed, the dismissal may be of no effect (the dismissal is annulled and the person is still employed). Each case depends on the particular facts and the particular Act and Regulations involved.
The principles of natural justice also apply to public sector appeals made by employees who unsuccessfully apply for a position. The courts have held that each person involved in the appeal is entitled to notice, in advance of the hearing, of any material in the board or tribunal's possession that is adverse to the applicant for the promotion. In particular the material itself must be provided to the applicant sufficiently ahead of the hearing or interview to give the applicant an opportunity to consider it and prepare an answer. An applicant who is taken by surprise in respect of matters raised for the first time at the hearing is entitled to an adjournment to enable a proper reply to be prepared.
The remedies available vary according to the Acts concerned. Some Acts and Regulations contain their own provisions for the review of decisions concerning public employees, and normally the aggrieved party is required to take a complaint to the appropriate appeal body.
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