Bias can arise at several stages when public servants make decisions. Be wary to avoid it.
The rule against bias has a storied history. Australian academic Simon Young recently cited the 800-year-old Magna Carta as providing a basis for the principle, which he described as having “a uniquely long pedigree in Western legal thinking”. The rule is simultaneously simple and plagued by complexity. At its essence, a decision-maker must bring a fair and open mind to any decision.
Of course, complainants do not need to be aware of this legal history to cry bias. The law is dense, in a state of flux and can deliver harsh outcomes from time to time. It is unsurprising, then, that affected individuals often mistake a dislikeable decision for one tainted by bias. But bias does occur, and distinguishing between unsupported complaints and legitimate grievances is not always easy.
Particularly in the employment law context, where emotions run high and personal relationships are firmly relevant, there can be a considerable risk of bias. In the public service, employment disputes typically tread a well-worn path. First, an investigator will investigate the disputed conduct. Second, a decision-maker will decide whether the allegations were substantiated and whether the wrongdoer should be sanctioned. Finally, a distressed public servant has avenues for appeal – whether internally, through industrial tribunals or in court. At all three stages, issues of bias can arise.
Before considering each in turn, a more elaborate definition is required. The Macquarie Dictionary defines bias as “a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question”. Essentially, bias occurs when a factor influences a decision where that factor has no reasonable and rational connection with the decision. If I have an irrational dislike of people with red hair, and I fire an employee because they have red hair, my decision-making would be tainted by my bias against redheads.
But the law is concerned not just with this actual bias; it extends to what can be described as an apprehension of bias. If my dislike of red-headed people is well-known, and I sanction an employee who happens to have red hair for misconduct, there is a risk that bystanders may apprehend I was biased in my decision-making regardless of whether the sanction was in fact influenced by bias. This is because our justice system is concerned not only with justice being done, but also with justice being seen to be done.
One of the most common complaints in employment disputes is that a workplace investigation was tainted by biased. In Francis v Patrick Stevedores Holdings, Fair Work Commission Deputy President Peter Sams found an investigation “was biased, incomplete and totally one-sided” because the investigator chose not to investigate counter-allegations of harassment. In another case, the commission found an apprehension of bias where an investigator was required to investigate his own conduct.
However, a finding of bias in the investigation will not necessarily result in compensation for the affected employee, nor reinstatement if they have been terminated. In Dent v Halliburton Australia, the commissioner, Susan Booth, held that an investigation did not need to be “flawless” provided the ultimate decision is reasonable. This places the focus on the final decision, rather than the investigation process, when determining possible remedies in unfair dismissal cases. That said, any finding of bias in the investigation will certainly help an employee in their attempt to overturn the decision or its consequences.
After the investigation, a decision-maker typically makes a finding of fact (for example, whether the allegations were proven) and determines the appropriate sanction. Here, the decision-maker can find themselves between a rock and a hard place. If they simply adopt the investigation report without independently assessing the evidence presented, their decision may be infected by bias – as was the case in Francis. But if they take the inverse approach and disagree with the (typically independent) investigator, they may also be labelled as biased and accused of harbouring ulterior motives.
The Fair Work Commission comes to the aid of decision-makers here, with several decisions accepting that reasonable minds can differ and therefore a decision-maker is not obliged to follow an investigator’s conclusions. The test remains whether the decision was reached reasonably and without bias.
Finally, there are typically avenues for appeal once a decision is made. Two forms of bias are sometimes alleged against courts and industrial tribunals. The first occurs where one party has communicated with the institution without informing the other party. In CFMEU v LCR Group, a union applied for Senior Deputy President Peter Richards to recuse himself on the basis of his private emails with the other party’s legal representatives. The full bench acknowledged that unilateral communications could give rise to a reasonable apprehension of bias, but held that there was no logical connection between the procedural discussions in the email chain and Richards’ ability to bring an impartial mind to the particular case. Accordingly, the application was refused.
Allegations of bias have also arisen (unsuccessfully) where a decision-maker has previously expressed an opinion on the legal question to arise in the case. The High Court’s comments in a 1986 case are apt: “[bias] flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that [they] will decide the case adversely to a party”.
The resounding message from both cases is that proving bias against a judicial or quasi-judicial officer is extremely difficult. This is for obvious reasons: the overwhelming majority of judges are highly professional and take their responsibility of impartiality seriously. Yet this has not stopped such allegations, even from within their own ranks. In February, Fair Work Commission Vice-President Graeme Watson sensationally resigned over his concerns that the institution was biased towards employees in unfair-dismissal cases.
Bias is a common complaint during workplace investigations and the processes that follow. When emotions run high, it can be an allegation which is easy to hurl yet difficult to substantiate. To avoid the risk of bias grounding a successful appeal, public servants should adhere to proper processes, manage conflicts of interest and utilise independent decision-makers wherever possible..