Eligibility - Exceptional circumstances exist

In early 2023, the employee applied for a primary review of action of the Decision, on the basis that he believed that the complaint had been conducted poorly, and his supervisor needed to be held to account for their actions. He applied for primary review 145 days after the Decision was made. This was out of time, noting the 120-day time limit for applying for a primary review of a decision by an agency.

When asked why he had applied out of time, the employee said that he was not aware that he could seek review of the decision until he had spoken to a colleague about the matter, who told him about the Review of Actions scheme. The employee also provided some medical information to support his position, namely that he had taken a large amount of stress leave during the relevant period.

The Agency was not satisfied that the employee being unaware of his review right, and his medical circumstances, constituted exceptional circumstances which explained his failure to make his application for review on time. As such the Agency decided that the Decision was not eligible for review. 

The employee then applied to the Merit Protection Commissioner (MPC) for secondary review. The delegate of the MPC was required to consider the exceptional circumstances issue again. The employee made substantially the same submissions as he did before his agency, but added that he also had some caring responsibilities during the relevant period. However he did not provide evidence to support this latter point.

After considering all of the available information the delegate of the MPC decided that the employee’s circumstances did not constitute exceptional circumstances explaining his failure to make his application for review in time. While the employee was on stress leave during some of the relevant period, he was at work for the remainder of the time. He did not provide evidence to support that he had medical conditions in addition to his stress leave, which meant that he was unable to turn his mind to the matter during the relevant window of time by submitting an application for review. An application for review need only be in writing. It is the MPC’s position that ‘exceptional circumstances’ is a high standard to meet, and an employee not knowing about their entitlement to review until a later date does not support that this standard is met. Further information is on the MPC’s tip sheet on eligibility for review, available on the MPC’s website. In this case, the application was not eligible for review.