In addition to procedural fairness, there are a range of other matters to be considered.
|Consider the following…||Examples|
Standard of proof
When there are disputed facts, the standard of proof is the 'balance of probabilities'.
That is, it is more likely than not that the fact is true.
While the standard of proof does not change, certain circumstances require better evidence.
Such circumstances include:
Many of the decisions reviewed under the review of actions scheme are made under agency policies. They do not involve legislative entitlements or have strict procedural requirements.
Some decisions under review are legislative decisions. Reviewers will need to be satisfied that the decisions are lawful (for example the appropriate delegate, procedural fairness).
A decision made strictly in accordance with policy guidelines may be unfair if the employee's individual circumstances have not been properly considered.
Sometimes cases present exceptional and compelling circumstances that require the flexible application of a policy guideline.
Exercising discretion depends on the legal authority for the policy.
A case may present where:
Where claims are made, applying the policy without regard to employee claims is not appropriate.