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This Newsletter is to provide APS HR Professionals and other interested people insights and advice from the work of the Merit Protection Commissioner. It provides quick links, practical tips and information on where to get expert support on making good employment decisions.

The Merit Protection
Commissioner is now on Facebook

The Facebook page complements
the revamped website launched last
year. Using a variety of social media helps reach different demographics within
the APS.

In particular, I am interested in reaching younger
employees and new recruits who may not be aware of the role and services of the
Merit Protection Commissioner. HR areas in agencies can access thought provoking articles and videos on
related topics that will assist them to consider the lessons from review is a
bigger context.

Like, share and contribute articles of interest.


Special Topic Newsletter: Procedural Fairness - what does it mean?

This newsletter is taking
a more in depth look at an issue that causes problems for agencies and
applicants.  It is also a significant
factor in recommendations from this Office to an agency to set aside and remake
a decision.  Yet, it is fundamental to
good decision making so read on...

Employees sometimes argue their
agency did not give them 'natural justice'. 

Employees are often confused
about what natural justice means.  From
an employee's perspective, this often includes thinking that an employer hasn't
listened to them.  This is on the basis
that if they had listened, then the employer would agree with their views on the
merits of their case.

Natural justice and procedural
fairness are legal principles that ensure fair and ethical decision making. Natural
justice is a term associated with procedures used by courts of law.

In practice the terms 'natural justice' and 'procedural fairness' have
similar meanings.  However, as Merit Protection Commissioner I prefer
the term procedural fairness because it is more appropriate to use that term to
describe the processes an administrative decision maker will follow. 

The rules of procedural fairness
have developed over time as a result of decisions by the courts in
administrative law cases. This includes decisions
made under the Public Service Act 1999 such
as Code of Conduct decisions which
have codified procedural fairness obligations. 
This means the legislation expressly provides for procedural fairness
and provides minimum procedures that must be followed.

In some cases an agency may need
to do more than follow minimum procedures in order to meet the requirements of procedural
fairness. An example is given in case study 2 below.

Generally, procedural fairness
requires decisions to be consistent with:

  1. the bias rule— free from bias or apprehension of bias by the decision-maker.
  2. the evidence rule—rational or based on evidence that is logically capable of supporting the facts.
  3. the hearing rule—fair by providing people likely to be adversely affected by decisions an opportunity to:
  • present
    their case and
  • have
    their response taken into consideration before the decision is made.

Fair employment
decisions and the bias rule

The 'bias rule'
requires that the decision maker is impartial and has no personal interest in
the matter to be decided.

The Administrative
Review Council's
(ARC) Best Practice Guide 'Decision Making: natural
justice' (p 1) states:

What matters is not the nature of the interest but
instead its actual or apparent influence on the person's ability to decide
impartially.  The question that should be
asked is: would a member of the public who knew about this interest reasonably
think that it might influence the decision? 
It is irrelevant that the
decision maker is personally satisfied that the conflicting interest has been
put out of mind in arriving at a decision

The important thing is how the situation might appear to the observer (emphasis
added).

The ARC has other booklets and information on good
decision making.

The Australian Public Service Commission's guide, Handling Misconduct, deals at Chapter 6 with
selecting an investigator. Paragraph  6.1.7 provides examples of where bias could,
or could be thought to, arise.  These
include:

The decision-maker has a personal interest in the decision including for
example a personal relationship or a close working relationship with the person
suspected of misconduct, a complainant or a witness.

Fair employment decisions and the evidence rule

The evidence rule requires a
decision maker to make clear findings of fact, including weighing conflicting
evidence and drawing conclusions that are logically supported by the evidence.

It is easy for a decision maker to
slip into errors of logic by failing to look critically at their assumptions. A
reasoning process that establishes which facts are not in dispute and then considers
what is in dispute and the evidence for and against is a good start.

When determining whether an employee
has breached the Code of Conduct it is useful if decision makers first determine
what actually happened without making any judgements about whether or not
anyone acted inappropriately.  Once a
decision maker has established, on the balance of probabilities, what happened,
they then need to assess whether or not what the employee did was in breach of
the Code. 

The decision-maker needs to explain
clearly the reasons for their opinions, including the standards against which
they are assessing the employee's behaviour. These standards are the Code of
Conduct itself, coupled with any policy frameworks and other agency
requirements in respect of employee behaviour. 

Case study 1:

The Merit
Protection Commissioner recently recommended an agency set aside an agency
misconduct decision because of significant errors of logic. In particular, blame
for the outcome of a series of events was incorrectly attributed to the
employee whose actions started the chain of events. The decision maker made a
series of assumptions about what the employee should have done in the
circumstances. These assumptions were not supported by a logical assessment of
the evidence. The Merit Protection Commissioner found that the employee acted
with reasonable care and concluded it was unfair to hold the employee to
account for outcomes caused by the actions of others.

A fair system of review and the hearing rule

The following quote is archaic but
the principle remains current: The objection for want of notice can never be got over… Even God did not
pass sentence on Adam before he was called upon to make his defence.
(R v University of Cambridge
(1723) 1 Strange 557; 98 ER 698 per Fortescue J, cited in Forbes 'Justice in
Tribunals' p 90.)

That principle is, a person whose interests or
legitimate expectations may be adversely affected by a decision should receive
a fair hearing. This includes an opportunity to respond to adverse information
that could influence the decision.

What constitutes a fair hearing
depends on the individual circumstances of the case. The more serious the
potential consequence of the outcome of a decision, the higher the threshold
for ensuring the person has been appropriately heard.

Agency misconduct procedures
include procedures for notifying the employee of the allegations and providing
an opportunity to respond. Although an agency may already have given the
employee an opportunity to respond, circumstances can change requiring the
employee to be given a second opportunity. Some agencies deal with these risks
through presenting the employee with all the evidence and a draft investigation
report for response before the final decision is made.

Case study 2:

In a recent case,
the Merit Protection Commissioner found that an agency had failed to give a
fair hearing to an employee and recommended that the misconduct breach decision
be set aside as a result of a serious procedural error.

The employee was
subject to concurrent criminal and misconduct proceedings about the same
matters (i.e. the unauthorised disclosure of Commonwealth information). The
employee declined to respond to the allegations of misconduct including because
he was concerned about the risk of prejudice to his rights in the criminal
proceedings. The maximum penalty if he was found guilty in those proceedings included
imprisonment.

The agency did
not make the determination of misconduct until after the criminal proceedings
ended with the court declining to record a conviction. The Merit Protection
Commissioner found that the agency should have offered the employee a second
opportunity to respond to the allegations of misconduct.  That is, after the criminal proceedings ended
and in circumstances where the employee was no longer constrained by the need
to assert his right to silence.

The Victorian Government has an easy
to read newsletter on the requirements of the hearing rule and how they apply
in practice.  Their website link is http://vgso.vic.gov.au/content/procedural-fairness-hearing-rule


Would you like more information on other
services we provide?

Coming up to performance discussion time and you want to
raise awareness of good practice? We provide tailored workshops drawing on
lessons learnt from review on important topics or initiatives being undertaken
in your agency.

The Merit Protection Commissioner's also
provides other services on a fee-for-service basis.  These include investigations into breaches of
the Code of Conduct and establishing independent selection advisory committees
(ISACs). The MPC Business Manager can help put together a package of information on specific services offered on a fee-for-service basis; this includes the new service for Code of Conduct inquiries. Call the MPC business team on (02) 8239 5317 or email mpcbusiness@apsc.gov.au


Resources of interest

Further resources on procedural fairness include:

  • Australian Administrative Review Council Best Practice
    Guide 2: Natural Justice
    , August 2007.
  • Australian Administrative Review Council Best Practice
    Guide 3: Decision Making: Evidence, Facts and Findings
    , August 2007.

Row of books


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Questions or comments?

Email us at Review@apsc.gov.au or call (02) 8239 5330