'Serious defects' in recruitment

Section 33 of the Public Service Act 1999 and Part 5 of the Public Service Regulations 1999 (the Regulations) set out the entitlements of the Review of Actions scheme. Although the scheme provides for a wide range of decisions to be reviewable, not all decisions and actions are reviewable. Relevantly, 5.23(2)(a) of the Regulations provides that an APS action is not, or ceases to be, a ‘reviewable action’ if it is action outlined in Schedule 1 of the Regulations.

In particular, Item 10 of Schedule 1 provides that an action relating to the determination of the duties of an APS employee is not reviewable, unless the action involves:

(a)  a reduction in classification; or

(b)  a relocation to another place; or

(c)  a promotion that meets the following criteria:

    (i)  the affected employee was an applicant for the promotion;

    (ii)  the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules;

    (iii)  there were serious defects in the selection process; or

(d)  the assignment to an employee of duties that the employee could not reasonably be expected to perform.

The test of whether there are ‘serious defects’ in a selection process is a high standard. The serious defects need to be a procedural non-compliance that is of such a fundamental and serious nature as to vitiate a selection process in its entirety. In other words, the defects need to be such that the entire selection process would need to be done again, and the promotions (and engagements) made as a result of the existing process could not stand. A serious defect cannot be corrected by a review of the merits.

Applications about serious defects concerns are assessed on a case by case basis, and the following are some examples.

Case Study 1

In the first case, an employee made an application for secondary review to the Merit Protection Commissioner (MPC) of the agency’s decision to place them in the merit pool but not to promote to an Executive Level 1 (EL1) position following a recruitment activity. The employee alleged that there were serious defects in the selection process.

The employee was concerned that their suitability for the role was assessed solely on the basis of an interview and that they were unable to perform in the interview to a high standard due to personal circumstances out of their control.

In deciding whether there were serious defects in the selection process, the MPC considered the concerns raised about the circumstances surrounding the employee’s opportunity to participate in the interview process within the recruitment activity.

The MPC considered that the interview panel was made aware of the employee’s personal circumstances, in that they were caring for sick children. The employee was offered alternative times to reschedule the interview and the recruitment panel made suitable accommodations to account for their personal circumstances.

The MPC considered that the concerns raised about the selection process did not amount to serious defects in the selection process, which would meet the exemptions outlined in Item 10 of Schedule 1 of the Regulations, and permit a review of the determination of duties.

Case study 2

In the second case, an employee made an application for secondary review to the MPC of the agency’s decision not to find them suitable and not place in the merit pool following a recruitment activity. The employee alleged that there were serious defects in the selection process.

The recruitment process required that candidates provide statements of claims using a fixed word limit, however, candidates who applied for both roles were given the same word limit as those who applied for one role. The employee submitted that the agency should have had two separate processes for these two different roles as it did not give the same opportunity to applicants who applied for both roles comparing with those who applied for only one role.

The MPC considered that the agency’s decision to use one recruitment process for two different roles did not amount to a serious defect in the process. There was substantial overlap in the criteria and required qualities for the roles and the agency had stated that it is normal practice to advertise the two roles together, as they have multiple criteria in common and attract the same candidates.

The MPC considered that the concerns raised about the selection process did not amount to serious defects in the selection process, which would meet the exemptions outlined in Item 10 of Schedule 1 of the Regulations, and permit a review of the determination of duties.

Case Study 3

In the third case, an employee made an application for secondary review to the MPC of the agency’s decision not to find them suitable or place into the merit pool for an EL1 or EL2 role following a recruitment activity. The employee alleged that there were serious defects in the selection process.

The employee applied for a combined EL1 and EL2 selection process that provided an option to submit one application for both the EL1 and EL2 positions, or each position separately. The employee alleged the process contained serious defects because applicants who applied for both the EL1 and EL2 levels were seriously disadvantaged, as they were provided the EL2 assessment questions only, which differed from the questions provided to those who applied for the EL1 position only.

The MPC considered that the decision to provide only the EL2 questions to candidates who applied for both the EL1 and EL2 levels does not meet the high standard of serious defects. The selection process did not involve any inherent unfairness or place the employee at any disadvantage in relation to other applicants. In addition, there was no evidence of a manifest failure to treat this applicant in particular unfairly, for example, a failure to provide the applicant with an opportunity to demonstrate their skills and merit.

The MPC considered that the concerns raised about the selection process did not amount to serious defects in the selection process, which would meet the exemptions outlined in Item 10 of Schedule 1 of the Regulations, and permit a review of the determination of duties.