Administrative reviews and procedural fairness

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Information about administrative review

What is merits review?

The Administrative Review Council (ARC) explains merits review as:

Merits review is the process by which a person or body:

  • other than the primary decision-maker;
  • reconsiders the facts, law and policy aspects of the original decision; and
  • determines what is the correct and preferable decision.  The process of review may be described as 'stepping into the shoes' of the primary decision-maker. The result of merits review is the affirmation or variation of the original decision.

The Merit Protection Commissioner does not have the power to make a fresh decision, but will make a recommendation to the APS agency as to whether the decision under review should be confirmed, varied or set aside.

The ARC further provides:

The principal objective of merits review is to ensure that those administrative decisions in relation to which review is provided are correct and preferable:

  • correct - in the sense that they are made according to law; and
  • preferable - in the sense that, if there is a range of decisions that are correct in law, the decision settled upon is the best that could have been made on the basis of the relevant facts.  This objective is directed to ensuring fair treatment of all persons affected by a decision.  
  • Merits review also has a broader, long-term objective of improving the quality and consistency of the decisions of primary decision-makers. Further, merits review ensures that the openness and accountability of decisions made by government are enhanced.

What does to 'stand in the shoes' of the original decision-maker mean in practice?

'Standing in the shoes of the original decision-maker' means:

  • considering afresh, information and evidence before the original decision-maker
  • obtaining new or updated evidence, where relevant
  • independently and impartially weighing and assessing the evidence and
  • coming to a new decision for reasons that may be the same as, or different from, those of the original decision-maker.

'Standing in the shoes of the decision-maker' is broader than just considering what is fair and reasonable.

More information on factors to consider when making a decision is available at how to conduct a review investigation.

What is the difference between merits review conducted by an administrative body and review by a court?

The Administrative Review Council identifies the main difference between a merits review and a review by a court as:

'A court will review a decision only on the ground of legal error. It will not set a decision aside simply because it prefers a different decision or factual finding. The Ombudsman, internal review officers, and some appeals tribunals and investigatory bodies can examine errors in fact findings as well as legal errors. For example, they can consider whether a decision is based on incorrect information or attaches too much or too little weight to particular evidence.'

From Decision Making: evidence, facts and findings, Administrative Review Council Best Practice Guide 3, August 2007, p 1.

How does the Merit Protection Commissioner conduct merits review?

The Merit Protection Commissioner looks at the case afresh and may:

  • identify legal errors in decisions such as a failure to afford procedural fairness or to follow mandatory procedures – in these cases the Merit Protection Commissioner will recommend the decision be set aside and refer the case back to the agency to remake the decision.
  • independently consider the evidence gathered by the agency and provided by the review applicant
  • gather additional evidence where necessary
  • form an independent view of the case
  • recommend that an agency decision be confirmed, varied or set aside for the same or different reasons from the agency decision maker.

What is procedural fairness and how does it apply to reviews?

What is procedural fairness?

Review applicants may argue their agency did not give them procedural fairness or 'natural justice'.Usually this means they think they did not have sufficient opportunity to state their case before an employment decision was made.

Procedural fairness is a legal principle that ensures fair decision making. It has developed over time as a result of decisions by the courts in administrative law cases. Some decision making processes, such as Code of Conduct decisions, have codified procedural fairness obligations, meaning that the legislation expressly provides for procedural fairness.

Generally, procedural fairness requires decisions to be consistent with:

  • the bias rule— free from bias or apprehension of bias by the decision-maker.
  • the evidence rule—rational or based on evidence that is logically capable of supporting the facts.
  • the hearing rule—fair by providing people likely to be adversely affected by decisions an opportunity to:
    • present their case and
    • have their response taken into consideration before the decision is made.

What is a fair hearing?

A fair hearing gives employees:

  • the information before the decision-maker that is relevant, credible and significant and, potentially adverse to the employee
  • an opportunity to respond to that information in writing or in person, for example in an interview.

A fair hearing also requires the decision-maker to consider the employee's response.

Note: It is not necessary to interview a person in order to give them a fair hearing.

When am I entitled to procedural fairness?

Whether an employee is entitled to procedural fairness depends on the circumstances of the case.

Procedural fairness generally applies to decisions made under legislation which could adversely affect the employee's rights and interests.

For example:

  • a decision to reduce an employee's classification for misconduct or unsatisfactory performance (section 23(4) of the Public Service Act)
  • a decision to suspend an employee from duty for suspected misconduct (Regulation 3.10)
  • a determination of misconduct (made under agency procedures established under section 15(3) of the Public Service Act)
  • a sanction imposed for misconduct (section 15(1) of the Public Service Act).

Some legislative provisions expressly provide a procedural fairness entitlement, or modify it.

For example:

Some enterprise agreements (EA) provide for procedural fairness when making EA-based decisions.

Generally preliminary decisions that lead to a final decision do not have procedural fairness obligations.

For example:

  • a decision to commence a misconduct investigation would not normally require procedural fairness as:
    • it initiates a decision-making process that may have an adverse outcome, but may not
    • procedural fairness will be afforded during the misconduct decision-making process.

Consistent with the above, a decision to commence a managing under-performance process would not normally require procedural fairness.

However, an EA may require procedural fairness before making this decision. If it does, it is advisable for agencies to afford procedural fairness.

What about ‘no surprises’ in performance ratings?

Many agency performance management policies have a 'no surprises' provision. Employees are supposed to be aware of the level of their performance through ongoing feedback during the performance cycle.

The 'no surprises' principle is good practice in performance management and encourages open and honest communication between supervisor and employee. However it does not 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?

It is good practice to give employees an opportunity to comment before making decisions that employees are likely to be concerned about. This helps manage relationships and may identify new and relevant information. However, it is not always possible to provide an employee with an opportunity to comment before a decision is made.

For example: A manager holds the view that an employee is performing poorly and shouldn't advance a salary point.

The manager is unable to communicate their intended decision because the employee is on sick leave and in circumstances where they cannot be contacted. The agency has medical opinion about the contribution of work-related stress to the employee's medical condition.

The employee argues that there has been a breach of procedural fairness.

However, the employee had:

  • notice during the performance management cycle that there were concerns about their performance and
  • been given opportunity to comment and respond to these concerns at the time.

In this case, the manager's decision was procedurally fair even though the employee was not given an opportunity to comment further before the final decision was made.