Administrative reviews and procedural fairness
Information about administrative review
A review of the merits of a decision is about 'standing in the shoes' of the original decision–maker.
Standing in the shoes of the decision-maker is broader than just considering what is fair and reasonable.
What is the difference between merits review conducted by an administrative body and review by a court?
A court reviews a decision only on the ground of legal error. An administrative review examines errors in fact findings as well as legal errors.
The Merit Protection Commissioner looks at the case afresh and forms an independent view.
What is procedural fairness and how does it apply to reviews?
Procedural fairness requires that a decision be free from bias, rational and fair. 'Fair' usually means having an opportunity to present a case and have it considered before making a decision.
An interview is not necessary to provide employees with a fair hearing.
An entitlement to procedural fairness depends on the circumstances of the case. It generally applies to legislative decisions which may adversely affect an employee's rights and interests.
The 'no surprises' principle is good practice in performance management but doesn't create a formal procedural fairness obligation.
Why is it good practice to provide an employee with an opportunity to comment, even when procedural fairness is not strictly required?
Providing an opportunity to comment helps manage relationships and may result in a better decision.