Material defect in procedural compliance and fairness

In conducting a review involving a breach of the APS Code of Conduct, the Merit Protection Commissioner (MPC) is required to consider procedural compliance before considering the merits of the case. Where a substantial or material procedural error or flaw is identified, a recommendation will be made to set the decision aside, without considering the merits of the case. Often, this will also be accompanied by a recommendation for the decision to be remade by a different decision maker.

For example, an employee was notified of the commencement of an investigation into suspected breaches of the Code of Conduct which would consider allegations that the employee failed to comply with relevant Department policies. The breach decision maker provided the employee with a letter containing their preliminary views that the employee was suspected of breaching section 13(1) of the APS Code of Conduct in the Public Service Act 1999 (the Act). The employee provided a response to the preliminary view letter.

The breach decision maker finalised their decision and wrote to the employee informing them that it had been determined the employee had breached section 13(2) of the Code of Conduct instead. The breach decision maker referred the breach determination to the sanction delegate who imposed a low level sanction. The employee lodged a primary review of the Department’s breach and sanction decisions with the MPC.

Consistent with the Australian Public Service Commissioner’s Directions, the Department’s procedures required the employee be informed of the details of the suspected breach, including any subsequent variation of those details.

In response to the MPC’s further enquires, the Department confirmed that there had been no communication with the employee notifying them that considerations were being given to vary the suspected breach from section 13(1) to a breach of section 13(2) of the Act, prior to the final breach decision being made.

The MPC considered that a material defect had occurred in the process of making the decision that the employee breached section 13(2) of the Code of Conduct. The failure to inform the employee that a variation of the breach determination was being considered was a fundamental breach of the Department’s procedures and the essential elements of procedural fairness. The MPC considered that the failure to inform the employee that the breach decision maker was no longer considering whether the employee was suspected to have breached section 13(1) of the Act, and then later finding the employee to have breached section 13(2) of the Act, would have caught the employee by surprise at the very end of the decision making process.

The MPC recommended that the Department set aside the breach determination against the employee for section 13(1) of the Code of Conduct on the ground that a procedural defect had occurred. Given the sanction decision was based on the breach of section 13(1), it followed that the sanction decision should also be set aside.