In brief

HR Managers may find themselves, or the investigator they appoint, facing a claim of “apprehended bias” much like Royal Commissioner Dyson Heydon (Heydon) has in recent times.

It would be difficult for almost anyone to say they’ve not seen at least one recent headline relating to calls for the dismissal of Heydon.

What may be surprising to some is the relevance of the issues surrounding this ‘scandal’ to HR Managers and their workplace investigation processes.

When issues such as workplace bullying, harassment, discrimination or misconduct are raised, HR managers need to ensure that the appointed investigator is impartial and free from any actual or apprehended bias.

What’s it all about?

Just in case you’ve missed the political and media storm surrounding Heydon and recent calls for him to step down from his role of Royal Commissioner (of the Royal Commission into Trade Union Governance and Corruption), here is the run down:

March 2014

Heydon was appointed to the Royal Commission into Trade Union Governance and Corruption (Royal Commission). A final report is due to be handed to the Governor General on 15 December 2015.

11 April 2014

Heydon accepted an invitation to deliver an annual address at a function to take place in August 2015 (Function). The function has been described by Labor Government representatives, Unions and the media as a “Liberal Party fundraiser”.

13 August 2015

Heydon advised the organisers of the Function that “if there is any possibility that the event could be described as a Liberal Party event [then] he [would] be unable to give the address.” (Heydon did not ultimately give the address or attend).

21 August 2015

Applications for the disqualification of Heydon on the ground of apprehended bias (Applications) based on an allegation that Heydon may have had an affiliation with the Liberal Party (said to have been demonstrated by Heydon’s initial agreement to attend at the Function) were presented by four separate groups of persons, including some of the Unions examined by the Royal Commission’s inquiry to date (including the ACTU, CFMEU, CEPU, HSU, TWU, Unions NSW, AWU and the MUA), along with some of the witnesses called.

1 September 2015

After he had considered the Applications, Heydon determined that the function was not a Liberal Party fundraiser, that apprehended bias had not been established, and therefore that he should not disqualify himself from the Royal Commission.

Apprehended bias – what is it?

Unlike ‘actual bias’, where it can be proven that a judge has not acted impartially, ‘apprehended bias’ relates to what an informed and reasonable person would perceive. That is, Courts (or Royal Commissions as the case may be) should not only act independently, but they should also be seen to act independently.

In circumstances where a Court would not, by an informed and reasonable person, be seen to be acting independently, an apprehension of bias will be said to exist.

To disqualify a judge (or Royal Commissioner) from hearing a matter, it is sufficient to show an apprehended bias exists – that is, they might not bring an impartial mind to the resolution of the matter which they must decide.

Perhaps one of the true ‘anomalies’ of applications to disqualify a decision-maker on the grounds of apprehension of bias is that it is the decision-maker himself/herself who is charged with determining the application against them.

In Heydon’s case, his initial decision to appear at the Function was the basis for an alleged association with the Liberal Party. Given that the Royal Commission was established by the Liberal Party and that the results and recommendations of the Royal Commission may assist that Party, an apprehension of bias on the part of Heydon was said to exist. However, like many judges and decision makers in his position, in presiding over the Applications against him, Heydon determined that this was not the case.

So, how does all of this relate to HR Managers?

HR Managers charged with workplace investigations often find themselves in a similar position to Heydon.

They have an obligation to conduct, or to appoint someone else to conduct, an impartial workplace investigation – and more often than not, the investigator appointed will make findings and recommendations as to outcomes upon which an ultimate decision-maker (i.e. a judge in Court) will later rely.

When identifying who might constitute an impartial investigator, HR Managers need to consider whether an apprehension of bias might exist, and directly ask the person/s being considered for the role of investigator (or themselves), weather there could be any issue in that regard.

Does an apprehended bias exist?

Types of questions that should be asked include:

  1. Does the person have an interest in the outcome of the investigation?

    For instance, would the investigator – or someone close to them – potentially perhaps be ‘next in line’ for the job if the subject of the investigation had their employment terminated or otherwise affected by the outcome of the investigation?

  2. Is there, or has there been, any conduct of the person which might give rise to a reasonable, informed person being given the impression that bias might exist?

    For instance, has the investigator been involved in a previous investigation or situation involving the same complainant/employee/witness and expressed a view as to the credit of that person?

  3. Does the person have an association with a person or party interested or involved in the investigation?

    For instance, is the investigator friendly with – or do they have some other kind of association or ‘history’ with – the subject of the investigation or the complainant?

  4. Does the person have knowledge of any prejudicial information?

    For instance, does the investigator have knowledge of a previous, similar relevant allegation to that they will be investigating?

Raising the issue

We often see unions or other employee advocates raise the issue of bias and partiality in relation to investigators and investigation reports.

More often than not, such arguments are run too late – after the investigation’s outcomes have been made known – and despite the objector having been aware of the identity of the relevant investigator for some time. At law, it will generally be considered unfair if a party fails to object until the content of the decision (or, perhaps, the investigation report) is known.

Lessons

In summary, lessons for HR Managers include the following:

  1. When deciding who should be appointed to investigate a workplace matter, HR Managers should consider who should investigate carefully, asking each of the above questions.
  2. Know that if they appoint themselves to be the investigator, they will – as Heydon was – be responsible for determining whether they should continue in the role if an issue of apprehended bias is raised. Like Heydon, they can decide that it is not an issue, but if they do so and they nonetheless proceed with the investigation, they risk having the outcome of the investigation challenged, perhaps set aside; and potentially having to commence a new investigation.
  3. Take comfort in the likelihood that objections on the basis of an apprehension of bias raised after the report is issued or a decision is made, will be considered unfair by the Courts.

    And, finally…

  4. If in doubt – run it past your lawyer. It’s far more costly to risk it.

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