Serious defects in the process—Failure to comply with the agency's procedures made under section 15(3) of the PS Act
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. The Merit Protection Commissioner is unable to consider the merits of a decision or make an assessment relating to breach or the sanction once a serious procedural defect has been found, regardless of how compelling or otherwise the Merit Protection Commissioner considers the case.
In such a case, the Merit Protection Commissioner is unable to 'cure' a serious procedural defect. The Merit Protection Commissioner will usually refer the matter back to the agency concerned with a recommendation that the decision be set aside and remade by a different decision-maker.
It is an important element of procedural fairness that there must be evidence in the form of facts and information to support all adverse findings. Adverse decisions should not be based on a view of an employee based on their reputation, gossip and rumour.
Case study 1
An employee sought review of the finding that he breached the Code of Conduct by asking a colleague to look up personal information on a client database for a nonwork-related purpose, and of the sanctions imposed on him for the breach.
In this case the Merit Protection Commissioner found that the agency failed to comply with its procedures for investigating suspected misconduct, made under subsection 15(3) of the PS Act. In particular, the agency failed to provide the employee with an opportunity to be heard orally before a decision was made as was required by the procedures.
This procedural defect arose because a discussion between the employee and a manager (which was taken by the agency as an opportunity to make an oral submission) was unclear in its purpose, no record was kept of the discussion and there was no evidence that the employee's statements during this discussion were brought to the attention of the breach decision-maker. The Merit Protection Commissioner considered that this was a substantial failure to comply with the agency's procedures for determining suspected misconduct and recommended that the decision be set aside.
This case demonstrated that confusion can be caused when a matter is initially dealt with informally and the employee is taken to have made admissions in circumstances where it is not clear that the employee is being investigated for suspected misconduct.
Case study 2
An employee was found to have breached the Code of Conduct for his behaviour towards a colleague and was reduced in classification as a result.
The agency's procedures required that an employee suspected of breaching the Code of Conduct, who makes a statement in writing, must be given an opportunity to make an oral statement to the breach decision-maker.
In this case, the person originally authorised to determine a breach had a discussion with the employee after receiving his written statement. This person kept no notes of the discussion. He subsequently moved to other duties and another person was authorised to determine the breach. The second decision-maker determined a breach without giving the employee the opportunity to make an oral statement and without any knowledge of the nature of the statement made by the employee to the first decision-maker. The Merit Protection Commissioner considered that this was a substantial failure to comply with the agency's procedures for determining suspected misconduct and recommended that the decision be set aside.
Case study 3
An employee was found to have breached the Code of Conduct when a member of his family incurred a speeding fine while using an agency motor vehicle in the employee's custody, without authorisation.
The employee was spoken to by a manager about the use of the motor vehicle and explained the circumstances in which the speeding fine had been incurred. This manager subsequently advised another manager of the outcome of her communication with the employee, stating that they had formed the view that the employee had breached the Code of Conduct and recommending the sanction of a reprimand. The second manager wrote to the employee advising him that she had determined that he had breached the Code of Conduct.
The Merit Protection Commissioner found that the decision-making process had not been in compliance with the agency's procedures for investigating suspected misconduct as the employee had not been informed of the details of the suspected breach and given a reasonable opportunity to be heard before a decision that he had breached the Code of Conduct was made. In particular, there was no indication from the first manager's communication with the employee that the employee had been advised that they were under investigation for suspected misconduct.