General / overarching principles

Overview

The principles of procedural fairness are intended to ensure that decision-making is fair and reasonable.

Requirements of procedural fairness include that there should be a fair hearing, the decision-maker should be free from bias, and act only on the basis of relevant material evidence.

This guidance considers the principles of procedural fairness as they apply to workers compensation.

Procedural fairness

An insurer is to consider the principles of procedural fairness when making decisions under the legislation that impact a worker’s rights, interests or entitlements.

Principles of procedural fairness are not concerned with reviewing the merits of a decision but with the procedure to be observed in reaching a decision. This includes, but is not limited to:

1. giving the worker notice of the issues in detail
2. giving the worker the opportunity to respond to any adverse material and provide new information for the insurer to consider
3. ensuring the decision-maker is not, or is not reasonably perceived to be, biased to an outcome
4. providing the worker with all the information the insurer has considered in making its decision, regardless of whether that information supports the decision or not.

It is good practice to observe these rules whether or not a statutory power is being exercised.

Hearing rule

It is important that both the worker and employer have an opportunity to present their evidence and that the decision-maker brings an open and impartial mind to each and every decision on the claim.

Before making a decision that may result in a reduction or discontinuation of the worker’s weekly payments, the insurer should inform the worker of the likely decision. This may include:

• explaining that there may be further discussions with other parties such as the worker’s employer, nominated treating doctor or other treatment providers
• advising of the potential outcome and detailing the information that has led the insurer to its current position
• allowing the worker to have the opportunity to respond to any material on which the insurer is relying
• providing an opportunity for the worker to supply any further information to the insurer and the date that this information is to be provided by
• telling the worker when the decision is expected to be made.

Bias rule

The decision-maker should be free from both actual and perceived (or apprehended) bias. That is, the decision-maker should bring an impartial and unprejudiced mind to the decision-making process.

To establish actual bias, a party must prove that the decision-maker had pre-judged the evidence. An allegation of perceived bias requires that a hypothetical, independent, fair-minded observer might reasonably form the view that the decision-maker does not bring an independent, impartial mind to the question before them.

Where there is a reasonable perception that the decision-maker may be biased, they should remove themselves from the process and ensure that an independent person undertakes the role of decision-maker.

Conflict of interest

A conflict of interest or possible conflict of interest can arise through the decision-maker's professional, personal or family interests. An apparent or potential conflict may involve pecuniary interests or non-pecuniary interests. Any perceived or actual conflict of interest should be identified and addressed as soon as possible.

Reasons for decisions

Providing reasons for a decision is a requirement of procedural fairness. Workers are entitled to an explanation as to why there has been an exercise of power that has impacted their rights, interests or entitlements.

Plain language

An insurer should provide information about the reasons for a decision in plain language. This means a worker should be able to easily understand the decision.

Plain language communication requires:

• being considerate of the worker’s circumstances
• communicating clearly and respectfully
• presenting concise information
• adapting the communication style to meet the worker’s needs.

The worker should be able to see:

• the facts and reasons that were the basis for the decision
• that the decision was not made arbitrarily or based on speculation
• to what extent any arguments that were put forward by the worker have been:
  • understood
  • accepted, or
  • formed a basis for the decision
• whether they have been dealt with fairly
• the date a decision was made by the insurer, and the date the decision takes effect
• the options for review or appeal
• any legal or other services available to the worker to provide advice and assistance in relation to the decision.