Natural Justice: The right to cross-examine

Anthony Drake, Senior Associate | June 2001

The landmark decision of David v Employment Relations Authority confirms the right to cross-examine in hearings before the Employment Relations Authority. When the Employment Relations Act was enacted, it aimed to expediate the process for settling employment disputes, making them more informal and less legalistic. The decision affirms that this cannot be achieved at the expense of the principles of natural justice.

Background

One of the key aims of the Employment Relations Act (ERA) was the resolution of employment problems in a speedy, informal and non-adverserial way. In setting its own procedures, the Authority decided it was appropriate to exclude cross-examination of witnesses from its investigations. The Employment Court has emphatically disagreed.

David v Employment Relations Authority

The decision is in response to a practice note issued by the Chief of the Employment Relations Authority in November last year.

The Chief of the Authority is required to ensure that the members of the Authority discharge their functions in an orderly and expeditious way that meets the objectives of the Act. The issuing of practice notes is an accepted way of achieving this.

This particular note stated that no cross-examination would be allowed.

In a unanimous decision, the full Employment Court has overruled this. The Court stated that cross-examination is an indispensable part of the application of the principles of natural justice. It could not uphold the practice note which was plainly intended to be a policy against cross-examination. The decision means that cross-examination is allowed whenever either party considers it necessary to resolve a conflict of evidence.

In this particular case, the Court considered that cross-examination was essential to determine whether the plaintiff was an employee of the company for a few crucial days as only the plaintiff and his supervisor were present during discussions. Issues of credibility were crucial.

Trade union reaction

Trade union reaction has been swift and damning of the Court's ruling. According to Ross Wilson, President of the Council of Trade Unions:

"The decision torpedoes the Government's Employment Relations Act model of a speedy, accessible, informal and relatively non-legal process for the investigation of employment disputes".

"It will be a pity if that results in a return to the legalism and delays which plagued the old Employment Tribunal."

Principles of natural justice

What this attitude overlooks is the fundamental principles of natural justice. The practice note denies a basic tenet of fair and proper process - the right to cross-examine - that is the ability to test evidence rather than just accept it at face value. It is one of the unwritten rules, along with the right to a fair hearing and the right to be heard, that are touchstones of our justice system.

Practical implications

The Court acknowledged that there would be practical implications of its decision. Undoubtedly the decision will lengthen many investigations.

However, cross-examination has never been an unfettered right. It has always been constrained by relevance of subject-matter, the admissibility of evidence and the need to ensure it is not oppressive or repetitive. And decision-makers are entitled to intervene to keep cross-examination within these limits.

The speedy, informal and practical disposition of employment relations disputes will only be modestly disrupted by allowing cross- examination.

One of the benefits is likely to be a greater acceptance of the Authorities determinations. If all parties are satisfied that the evidence has been properly tested and accepted on its merits, there will be less likelihood of challenges to those decisions. The Act contemplates a minimisation of judicial intervention in this way.

But, in the end, the decision needs no justification or defence. The right to natural justice far outweighs any theoretical detraction from the ideals of speed and informality.

Conclusion

The decision creates a dilemma for the Government. The ERA expressly states that the Authority must, in its procedures, observe the principles of natural justice. The Employment Court has said that this includes cross-examination. If the Government overturns the decision with an early amendment to the ERA, it will be criticised as supporting judicial procedures which do not comply with the principles of natural justice. However, to leave the Court's decision in place will no doubt frustrate the Government in realising its objective of speedy, informal investigative procedures in the Authority.