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Key issues: Procedural Fairness/Natural Justice, Hearing Rule

Summary

Complaints were made about an employee’s behaviour in the workplace.

To respond to the complaints, the relevant decision-maker decided to undertake a process in line with agency guidance material. The process was also informed by specific terms of reference (TOR). The deliverables included the requirement to develop a brief with supporting documentation and recommendation/s for the consideration of the decision-maker.

The employee was provided with a notification of the allegations and that the process would be conducted according to the agency guidance material. The agency guidance material provided for the usual investigative steps as well as guidance on ensuring procedural fairness to those who might be subject of an adverse or prejudicial finding. Despite the reference to the agency guidance material and the issue of the TOR, the employee was informed the process was an informal ‘fact finding’ and not an investigation. The issue of the TOR meant the process was more structured and formal than informal.

The actual process followed by the ‘fact finder’ deviated from the TOR and agency guidance on ensuring procedural fairness. The ‘fact finding’ process had all the characteristics of and was in fact a workplace investigation.

The following actions were taken in the development of the brief to the decision-maker:

  • Interview with the employee and subsequent development of a witness statement;
  • Interviews with other employees and development of their witness statements;
  • Identification of supporting evidence; and
  • Development of a report with recommendations.

At the conclusion of the ‘fact finding’ process the decision-maker provided the employee with a written outcome of the process and an extract from the report. The outcome provided a recommendation to issue the employee with a specific performance management instruction that was acted on by the employee’s immediate supervisors. This action had an adverse impact on the employee ultimately hindering their opportunity for salary progression.

The employee sought review by the Merit Protection Commissioner of the outcome of the ‘fact finding’ process and the decision to issue the instruction. The employee raised concerns with the evidence gathered during the ‘fact finding’ process and that they had been denied procedural fairness during that process and by the decision-maker.

MPC assessment of the case

The review conducted by the MPC found that the ‘fact finding’ process and the final decision were procedurally flawed as a result of the following:

  1. The employee was told specific processes relating to the fact finding would be followed and they were not.
  2. The fact finding process deviated from agency guidance material. The process was a workplace investigation, with the character of a disciplinary inquiry rather than the purported informal process.
  3. The employee was not provided an opportunity to review and verify their witness statement.
  4. The fact finder’s report made a prejudicial statement about the employee rather than stating facts.
  5. The fact finder did not supply the employee with a copy of the findings report (inclusive of all witness statements) and an opportunity to comment thereon before they were presented it to the decision-maker.
  6. The decision-maker did not inform the employee of their proposed decision nor the evidence to support the decision prior to the making of the decision to issue the performance management instruction.

The process undertaken by the fact finder and decision-maker denied the employee procedural fairness.

The MPC found that the decisions were not made in accordance with the Agency’s own processes and were neither fair nor reasonable.

The MPC recommended that the decision be set aside and that a fresh investigation commence with investigators and decision makers who were not previously connected with the matter.

Conclusion

Consistent with the APS Employment Principles, employees are entitled to have fair decisions made. Processes undertaken in the workplace that have an investigatory character are a workplace investigation. An employee should be notified of the process to be undertaken and that process should be followed. Respondents and other witnesses in workplace investigations should be given a draft of their statement or interview transcript and have the opportunity to verify the accuracy of the document. Employees are entitled to procedural fairness in workplace investigations and should be given an opportunity to rebut any evidence, statement or proposed finding that is adverse or prejudicial to them personally before these are presented to the decision-maker. The Hearing Rule requires that a person likely to be adversely affected by a decision must have an opportunity to present their case and have their response taken into account before the decision is made.