Step 5A what else do I need to consider?

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:

  • allegations of serious wrongdoing
  • where a fact is inherently unlikely
  • where there are serious consequences to making a finding.

Lawfulness

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).

Examples:

Applying policy

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.

For example, whether the policy is:

  • a mandatory procedure under legislation or
  • limited by the terms of the agency's enterprise agreement.

For example: Employees may seek extended leave without pay to meet family responsibilities (other than parental leave) such as domestic violence or to pursue alternative careers.

A leave without pay policy may give managers discretion to refuse or grant the leave on the basis of operational priorities.

A review can consider any exceptional and compelling circumstances put forward by the employee.

A case may present where:

  • the employee's claims are very compelling—family circumstances suggest a more compassionate response
  • a broader view of the agency's business interests suggests consideration of outside employment opportunities.

Where claims are made, applying the policy without regard to employee claims is not appropriate.