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
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
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:
- the bias rule— free from bias or apprehension of bias by the decision-maker.
- the evidence rule—rational or based on evidence that is logically capable of supporting the facts.
- the hearing rule—fair by providing people likely to be adversely affected by decisions an opportunity to:
their case and
their response taken into consideration before the decision is made.
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.
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
The ARC has other booklets and information on good
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
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 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.
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.
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 email@example.com
Resources of interest
Further resources on procedural fairness include:
- John Griffiths SC, 'Apprehended Bias in Australian
Administrative Law'. Federal Law Reform, Volume 38, 2010, pp 353 – 369
- 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.
- Administrative Review Council, Practical Guidelines
for preparing statements of reasons, revised November 2002.
- 'The Hearing Rule', Victorian Government Solicitor's
Office, Client newsletter, September 2007
- Office of the Merit Protection Commissioner, Not just
about process: the review of action scheme. A human resources practitioner's guide
to responding to and managing employee complaints and disputes
- Office of the Merit Protection Commissioner website - what is procedural fairness and how does it apply to reviews?
- Australian Public Service Commission, Handling
misconduct: A human resource manager's
To remove your name from our mailing list, please contact Melinda.Kopilow@apsc.gov.au
Questions or comments?
Email us at Review@apsc.gov.au or call (02) 8239 5330