All committees that assess a faculty member for tenure and/or promotion must be conducted according to the principles of natural justice.
Acquiring a fundamental understanding of natural justice will provide fail-safe means to gauge the appropriateness or inappropriateness of any proceedings in which you are involved.
How do the principles of natural justice apply?
The principles of natural justice apply irrespective of any rule(s) a committee creates. They are principles of law that have been applied over the centuries by courts to the conduct of administrative tribunals such as those set up at this university. The applications and interpretations of rules by a committee must be guided by these principles.
When does natural justice apply?
It applies any time a tribunal, panel or hearing committee make decisions that seriously affect the rights of others. Promotion and tenure decisions are ones that significantly affect the rights of a faculty member, as do disciplinary or other tribunals/committees.
What are the principles of natural justice?
The simplest description is “fair play in action” (Supreme Court of Canada). A more formal description (from a time before gender neutral language was the norm) might be that here a candidate must:
...know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other....[Lord Denning 1962 quoted in the Supreme Court of Canada].
What is "fair play in action"?
There are three key principles of fairness or justice that must guide all administrative decisions at the university, including those of hearing committees and tribunals:
- People have a right to be heard: they must have a fair opportunity to present their case whenever their interests might be adversely affected by a decision;
- The ruling must be made by someone free of bias;
- The judgment must be based on evidence, not on speculation or suspicion, and the decision must be communicated in a way that makes clear what evidence was used in making the decision.
Guidelines for applying the principles of natural justice
Based on these key principles, these are the ‘rules of thumb’ or guidelines (in no particular order.) Faculty members being assessed must:
- have sufficient notice of any procedures being brought forward that involve their interests. In this regard reasonable attempts should be made to accommodate all relevant schedules;
- be provided with all the information about their case, both positive and negative;
- believe that anyone evaluating them (either on a committee or otherwise) is free from inappropriate bias. The determination of bias is based on the reasonable perception of the faculty member. Note that the key threshold is ‘perception’, and not bias ‘in fact’ or actual bias, which does not have to be proven. Also that the perception must, however, be reasonable and this particular qualification can be difficult where peer evaluations occur, in other words, “I don’t think X likes me” will likely not be considered reasonable. Seeking the advice of a neutral third party (an AF&T member, for example) is sound practice here;
- have the right to challenge any member of a tribunal for bias;
- have reasonable faith that any person making an administrative decision has sufficient expertise to understand the issues before them;
- be allowed to bring a person of their choice to the hearing to assist them (an AF&T member, for example);
- be allowed to call witnesses in support of their case where relevant;
- be allowed to present all evidence they deem relevant to make their case;
- hear all evidence against them and question any witnesses presented by other parties;
- in a hearing, be able to ask for a break in the proceedings at any time in order to gather their thoughts or better prepare their case;
- receive a written statement as to the outcome;
- have access to the recordings of the hearing, if any are made.
Addressing your concerns about violations of natural justice
Any faculty member who has concerns that natural justice may have been or will be violated should contact the Academic Freedom & Tenure Committee immediately if they want further assistance with interpreting these principles.