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Procedural flaws—a breach of the bias and evidence 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 reflecting on their reputation, gossip and rumour.

Case Study

An employee sought review of the finding that he had breached the Code of Conduct for behaving in a harassing manner towards colleagues at a meeting and of the sanctions imposed—a reduction in classification and a reprimand.

In this case, the sanction decision-maker had before them a report recommending a sanction that exaggerated the seriousness of the employee's behaviour and contained numerous adverse assertions about the employee's conduct and behaviour, unsupported by any evidence. The sanction decision-maker appeared to accept those statements by accepting the recommendations in the report without comment. In the view of the Merit Protection Commissioner, this gave rise to a reasonable apprehension of bias.

In addition, the sanction report made reference to irrelevant material (a discussion on an unrelated incident where the employee made a mistake in releasing information to a client), giving rise to a concern that irrelevant material was taken into consideration in making the sanction decision.