Procedural flaws—a breach of the hearing rule of procedural fairness
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.
The hearing rule of procedural fairness requires that a person whose interests could be adversely affected by a decision should be provided with sufficient information to allow them to make effective use of the right to respond and present arguments.
Case study 1
An employee sought review of the sanctions imposed on him for a breach of the Code of Conduct. After the determination had been made that the employee had breached the Code of Conduct, the employee was advised of the full range of sanctions in section 15(1) of the PS Act. The employee was given an opportunity to comment on the issue of sanction and/or to provide further details of mitigating circumstances to the sanction delegate.
The advice to the employee on sanction outlined all the available sanctions but did not indicate which sanctions were being considered in his case. There was no indication that the employee had been advised at any stage which sanctions were being considered before the sanction decision was made, or the reasons for the proposed sanctions.
In this case, the Merit Protection Commissioner took the view that there was a significant failure to afford procedural fairness in relation to the sanction decision as the individual may have prepared more deeply and provided further information for a sanction at the serious end of the spectrum, to a sanction at the minor end. It was recommended that the sanction decision be set aside.
Case study 2
An employee was found to have breached the Code of Conduct for emailing in-confidence material to their home email address to work on overnight to meet a work deadline the following day. The employee was sanctioned with a fine.
In the notice provided to the employee advising them that their conduct was under investigation, the employee was advised of the full range of sanctions that may be imposed. After a breach of the Code of Conduct had been determined, the employee was advised that a reprimand was being considered and was given an opportunity to comment on that sanction. The employee duly provided comments. However, the sanction delegate imposed a sanction of a fine, without providing any reasons for the more serious sanction.
In the view of the Merit Protection Commissioner, the earlier general advice on sanctions was overtaken by the specific advice and the failure to give the employee an opportunity to comment on the proposed sanction represented a failure to afford procedural fairness. In this case, the employee presented significant information relevant to mitigation, after the sanction decision was made, that in all likelihood would have affected the sanction decision.
The Merit Protection Commissioner recommended that the sanction decision be set aside due to a procedural error.
The information provided by the employee and her managers to the review indicated systemic issues with respect to the capacity of employees to work on confidential material at home. The Merit Protection Commissioner made the observation that the issues presented by this case would have been more appropriately dealt with through management action to address the systemic issues, rather than taking misconduct action against this particular employee.