Administrative fairness requires that decisions are arrived at impartially, equitably, and objectively. The concept is based on the recognition that “natural justice” and “procedural fairness” are needed to ensure that decisions are arrived at fairly. Principles of administrative fairness include:
- The right to know what the problem is
- Adequate notice
- Enough information
- Right to representation
- Reasons for decision
The Ombudsman gets involved where there is a complaint of an inappropriate or incorrect application of legislation, regulation, policy, practice, procedure or process. Examples of administrative unfairness include:
- Unreasonable delay
- Incorrect action or failure to take any action
- Failure to follow established procedures
- Failure to provide adequate information
- Misleading or inaccurate statements
- Inappropriate or incorrect application of policy, procedure or practice
Confidentiality will be maintained throughout the complaint process, in order to protect the interests of the complainant, company officials and any others involved in the Ombudsman enquiry or investigation.
Due process involves respecting the rules of procedural fairness. All sides to a dispute deserve:
- A fair opportunity to be heard
- An opportunity to fully respond to a complaint made by the “other side”
- Reasonable notice to the parties affected by a complaint and allowing a fair length of time for individuals to prepare and/or respond
- Clearly defined, unbiased reasons for decisions reached
Equitable fairness has to do with how we treat parties to a complaint. It is about making sure that people are treated fairly, not necessarily identically.
To some, there appears to be a conflict between the conventional sense of equality, and an inclusive model of equity. It can be a deeply held belief that treating people fairly relies on treating everybody the same and allowing the result to emerge. Treating people differently is thought to be discriminatory or unfair.
In fact, one can treat people differently if that provides access to the same result. It is the result that matters. Being inclusive is critical if we are going to remove barriers to service and achieve equitable service delivery with results that are fair to everyone.
Equitable fairness explicitly takes into account the person’s social location – factors such as education, ethnicity, creed, culture, language, age, geographic location, gender, sexual orientation, socio-economic status, and disability. Should a member of the public show any of these disadvantages, officials should make additional efforts to redress any imbalance the disadvantage creates.
Facilitation is used by the Ombudsman to help people understand their common objectives and their ability to achieve those objectives. The Ombudsman is impartial, and takes no side or position in the discussion.
The Office of the Ombudsman is an advocate for administrative fairness. The Ombudsman and staff of the Office of the Ombudsman are impartial enquirers/investigators of complaints.
Maladministration refers to instances where poor business practices—which may involve acts, omissions, decisions or recommendations—result in inefficiencies, improprieties, poor service, and bad management.
Mediation is used by the Ombudsman to help the parties in a dispute understand one another’s point of view, and maximize their area of agreement. The aim is to reduce the barriers to a resolution of the dispute.
Negotiation is a method used to settle differences, reach a compromise or come to an agreement. The aim is to achieve the best possible outcome for individuals in disagreement.
The Ombudsman can only investigate complaints from individuals who are personally affected. The definition of person has been broadly defined by the courts to include an organization or agency that might have been affected in its capacity.
Procedural fairness concerns how the decision is made – the steps to follow before, during, and after a decision is made. This is about process. The concept of procedural fairness has been developed through the courts to ensure that decisions of administrative bodies are arrived at fairly.
Procedural fairness includes giving the member of the public the right to know that an adverse decision is going to be made, the right to respond to the decision-maker, and the right to an unbiased decision. At a minimum, procedural fairness requires:
- Clear communication
- Proper notice
- Opportunity to present their case
- Clear reasons for the decision
- Proper records
Shuttle diplomacy occurs when an intermediary meets separately with people in dispute. In the case of the Ombudsman’s office, staff will gather information from both the complainant and company in order to reach a shared understanding of the facts. Parties can often resolve their differences though this process.
Substantive fairness concerns the fairness of the decision itself.
This is another word for openness. All relevant parties will have access to full information about the process and steps being taken to resolve or investigate a complaint.