Serious defects in the process—Revisiting the determination that an employee has breached the Code of Conduct
One of the threshold issues considered by the Merit Protection Commissioner is whether an application for review raises issues of procedural fairness or compliance with agency procedures, or any other concerns that might lead to a conclusion that there were serious defects in the agency decision-making process.
An employee sought a review of the finding that he had breached the Code of Conduct in relation to allegations of bullying and harassing behaviour directed towards a colleague.
An external consultant was engaged and authorised to determine whether the employee had breached the Code. The consultant determined that the employee had breached sections 13(3) and 13(11) of the Code of Conduct in relation to a range of behaviours.
The employee was invited to make a submission to the sanction decision-maker on the issue of sanction. In doing so, the employee raised a number of concerns about the breach decision and asked that it be set aside.
The sanction decision-maker wrote to the employee advising that he had reconsidered the details of the investigation report and breach decision and decided to amend the findings. The sanction decision-maker advised that he had found two of the three behaviours found to be in breach of the Code of Conduct were not a breach and the employee had only breached section 13(3). The decision-maker advised the employee on that basis he had decided not to impose a sanction.
The Merit Protection Commissioner advised the agency that the sanction decision-maker was not at liberty to re-make a valid determination regarding a breach simply because he took a different view of particular matters which informed the original decision.
The only circumstances in which an agency decision-maker may set aside a decision of a breach of the Code of Conduct, or the sanction imposed, are where:
- the Merit Protection Commissioner makes a recommendation to that effect, or
- the agency identifies legal error in the original decision such that the decision can be taken to be a 'nullity' i.e. not lawfully made.
The Australian Government Solicitor has a legal briefing on its website entitled 'Don't Think Twice—Can Administrative Decision Makers Change Their Mind' (Legal briefing no. 67) which provides advice on the capacity of administrative decision-makers to vary or set aside decisions that are subject to legal error.