Tips and traps for agencies and decision makers

Generally, most actions relating to an employee’s APS or Parliamentary Service employment are reviewable.

Key exceptions include:

• most staff selection, staff placement and recruitment decisions
• actions relating to determining an employee’s duties
• an agency’s strategic or policy decision making (note: how a policy is applied to a particular employee may be reviewable)
• where an employee does not have a direct interest in the action or decision (i.e. something that happened to another employee, not to them).

You can also find more detailed information on review eligibility, and types of matters eligible for review.

There are a number of reasons an agency or the Merit Protection Commissioner may decline to conduct a review.

The key reasons may include:

• The application is made out of time (an applicant has 120 days to seek a review by their agency, and 60 days to seek a review with us) and there are no exceptional circumstances to explain the delay
• The applicant seeks review of a ‘non-reviewable action’
• If the applicant has already applied to the Fair Work Commission or the Australian Human Rights Commission about the same issue
• There are also discretionary grounds to decline to continue a review where the outcome sought has already been achieved and there is no utility in continuing with the review.

We also have more detailed information about the types of actions we can review, and information on review eligibility. 

No.

Most staff selection, staff placement and recruitment decisions are not reviewable, particularly if they are engagement decisions or temporary higher duties positions.

An agency decision to assign duties (or not assign duties) to an employee is a decision open to the agency to make under section 25 of the Public Service Act 1999 and Parliamentary Service Act 1999.

Decisions relating to ‘the determination of duties’ of an employee are only reviewable if they involve:

• a reduction in classification
• a relocation to another place
• duties that the employee could not reasonably be expected to perform
• an EL1 or EL2 promotion decision that had serious defects in the selection process.

This is set out in section 37 of the Public Service Regulations 2023 and Schedule 3 item 10 of the Parliamentary Service Determination.

An agency can of course decide to look into an employee’s concerns if it is in the agency’s and employee’s interests to do so. This could be as a management action rather than as a formal review of action.

The Public Service Regulations and Parliamentary Service Determination provide that a review should be conducted as quickly, and with as little formality, as proper consideration allows.

We aim to conduct most reviews within 14 weeks of receipt.

Many reviews within an agency should be able to be conducted more quickly as the reviewer will usually have ready access to all relevant information.

Reviews should be expedited where serious adverse outcomes may be incurred if the review is otherwise delayed.

Keep in mind that there is nothing to prevent a manager or reviewer from attempting to resolve the matter through dispute resolution at any stage of the review process, including when under review by the Merit Protection Commissioner.

No.

Section 49 of the Public Service Regulations 2023 and clause 107 of the Parliamentary Service Determination state the making of an application for review does not operate to stay the action.

This means an agency’s decision can proceed or remain in force while a review is being conducted.

Of course, an agency may voluntarily choose to stay the action during the course of a review if it considers it appropriate to do so.

This is different for our other statutory function, review of promotion decisions.

Yes.

As a review application does not ‘stay’ the action under review, this means an agency can proceed with its sanction decision making process even while our review of the breach determination is underway. If the agency advises the employee that a sanction of termination is likely, we will prioritise our review and seek to conduct it with urgency.

If an agency imposes a sanction while the applicant seeks review of the breach determination, this will allow us to review both the breach determination and sanction decision at the same time. (For sanctions less than a sanction of termination of employment, which is not reviewable by us).

An agency may consider it more appropriate in certain circumstances to not impose a sanction until our review of the breach determination is concluded, however there is no obligation to do so.

An agency should choose the best course of action in the circumstances, taking into account the following principles:

• APS Agencies should achieve and maintain workplaces that encourage productive and harmonious working environments. 
• It is intended that the review of actions scheme provides a fair system of review of APS actions.
• Employees’ concerns are intended to be dealt with quickly, impartially, and fairly.

Yes.

As a review application does not ‘stay’ the action under review, this means an agency can proceed with performance management action even while our review is underway.

In some circumstances an agency may decide it is appropriate to await our review outcome before proceeding. This is entirely a matter for an agency decision maker. An agency should choose the best course of action in the circumstances, taking into account the following principles:

•  APS Agencies should achieve and maintain workplaces that encourage productive and harmonious working environments. 
• It is intended that the review of actions scheme provides a fair system of review of APS actions.
• Employees’ concerns are intended to be dealt with quickly, impartially, and fairly.

Administrative decision-makers must generally accord ‘natural justice’ to persons affected by their decisions. A substantial aspect of natural justice is the requirement to provide ‘procedural fairness’ in the process of administrative decision-making.

Procedural fairness involves three closely related legal obligations:

• That a fair hearing is provided by the decision-maker and, before an adverse decision is made, the person affected by the decision is informed of all information that is adverse, relevant and credible and is given a fair and reasonable opportunity to make a submission in reply.
• That a decision-maker is free of actual bias and that no reasonable apprehension of bias is present.
• That a decision-maker’s findings are based on evidence and are neither arbitrary nor irrational.

Day-to-day workplace-related management decisions, such as deciding on a leave application, would not usually need to comply with strict procedural fairness requirements, however this will always depend on the circumstances of a particular case. Relevant factors may include the level of severity that an adverse decision may have for the affected employee, and whether there is a stated process that the employee would reasonably expect the decision-maker to  follow. While it is not always reasonably practicable to provide an employee with an opportunity to comment before a decision related to day-to-day management is made, it is good practice to give an employee an opportunity to comment before making decisions that they are likely to be concerned about. This helps manage workplace relationships and may identify new and relevant information.

For all other administrative decisions that adversely affect the rights, interests or legitimate expectations of an employee, procedural fairness must generally be accorded.

For APS and Parliamentary Service decision-makers, there are mandatory formal procedural fairness requirements for certain adverse decisions, including Code of Conduct determinations, sanction decisions, suspensions from duty, and performance management actions. Code of Conduct determinations and sanction decisions must also comply with the agency's formal procedures as per section 15(3) of the Public Service Act and Parliamentary Service Act.

For APS managers making performance management decisions, they will need, in most cases, to comply with relevant policies which set out the steps to be taken in decision making.  For example, most performance policies have a ‘no surprises’ rule which should be complied with before an adverse performance management decision is made.

Your agency’s Enterprise Agreement or other relevant legislation (for example the Fair Work Act 2009) may provide additional procedural requirements for decision makers.

When we conduct a review, we make sure our decision making is procedurally fair and we review whether the agency’s decision was procedurally fair. This is important because a decision maker who follows a fair process is much more likely to reach a fair and reasonable outcome that is legally correct and resilient.

Detailed information about procedural fairness in administrative decision making can be found in this Best Practice Guide published by the Administrative Review Council.

You may also wish to consider our published case studies which include better practice advice on procedural fairness considerations.