Eligibility - Handling of complaint - not justified in all of the circumstances

In late 2022, the employee applied for a primary review of the Decision by the Agency. This was over one year after the Decision was made. The employee provided extensive medical information and evidence to explain why they were not able to make an application for primary review within the required 120 calendar days.

The Agency was satisfied on this basis that there were ‘exceptional circumstances’ explaining the employee’s failure to make the application for review in time, but decided that the employee’s application was not eligible for another basis. Namely, because further review of the Decision was not justified in all of the circumstances.

The employee then applied to the Merit Protection Commissioner (MPC) for a secondary review. The MPC delegate was required to consider the out-of-time issue again, and agreed with the Agency that the employee’s circumstances were exceptional and sufficiently explained their failure to make the application for review in time.

However, after considering all of the available information, the MPC delegate also formed the view that further review of the Decision was not justified in all of the circumstances. There are a number of circumstances when a delegate may be likely to consider that this is the case, including where is no outcome to be achieved, the outcome has already been achieved, or the resources required to review the matter cannot otherwise be justified. Further information about the MPC’s policy regarding this discretion is available on the MPC website. In this case, the MPC delegate decided that further review of the Decision was not justified in all of the circumstances because the allegations were over seven years old, the supervisor no longer worked at the agency and the passage of time would likely mean that any evidence gathered through further investigation would be less reliable and have little probative value. Further investigation would therefore have been unlikely to uncover additional material evidence and for that reason there was little, if any utility in conducting a further review.