Conducting a review investigation

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Information on how to conduct a review investigation

What is the purpose of a review investigation?

You may need to conduct an investigation if there is a dispute about the facts of a case.

The purpose of an investigation is to make findings of fact.

What are the important steps in conducting a review investigation?

  • Step 1 identify key issues
  • Step 2 plan the investigation
  • Step 3 gather the evidence
  • Step 4 assess the evidence to establish the facts
  • Step 5 make a decision—things to consider and reaching the right outcome
  • Step 6 record the decision: review report and an ideal review report.

Information on what agencies 'Must' do when conducting a review is also available.

Step 1 how do I identify the important issues?

Identifying important issues requires:

  • understanding the basis of the employee's complaint
  • identifying the relevant policies, instructions and guidelines.

This can be challenging!

Sometimes a review applicant has a long list of complaints over an extended period. In this situation, it is helpful to focus on:

  • the more serious and recent complaints
  • complaints that are representative of the substance of the review applicants concerns.

You do not have to review everything the review applicant has complained about.

Note: It can be helpful to have an early discussion with the review applicant to explain what will be investigated and why. It is also important to check that you accurately understand the applicant's concerns.

For example: An employee applies with a bullying and harassment complaint. They list a large number of incidents and make general allegations not linked to specific incidents. The reviewer discusses this with the applicant and identifies some key incidents that are characteristic of the employee's concerns. The reviewer gathers evidence on these incidents.

Step 2 should I prepare a review plan?

A review plan is good for more complex reviews.

When developing a plan, include indicative time frames, particularly for the evidence-gathering stage.

It is good practice to advise the applicant of the plan and indicative timeframes.

This helps manage expectations about when they may have a response.

Step 3 what is important when gathering evidence?

Identify:

  • the facts that need to be established to make a decision and
  • the evidence needed to establish those facts.

Evidence may come from:

  • documents such as emails, letters, minutes, file notes, system notes, diary notes
  • oral evidence for example, from witnesses to incidents.
Important to note… Comment

Recording the evidence

This includes records of review interviews with the applicant or other participants.

All the evidence considered by the reviewer should be documented and filed.

Interviewees are usually given the opportunity to:

  • accept the content of the record of interview and
  • clarify what they said at interview.

Transparency

The record of evidence may be shared.

If the case comes to the Merit Protection Commissioner for review, agencies must make all relevant documents relied on in their review available (Regulation 5.30).

Support person

When interviewing, it is good practice to provide the review applicant with the option of a support person.

A support person provides support but does not advocate for the employee.

It is important for review applicants to tell their story in their own words.

Confidentiality and Privacy issues

All relevant documents relied on in agency reviews are made available to the Merit Protection Commissioner and the review applicant (Regulation 5.30).

When gathering evidence for reviews, an agency should not give absolute guarantees of confidentiality.

Review applicants and witnesses should be given information about the likely use and disclosure of personal information gathered in the course of a review (Privacy Act 1988).

The Merit Protection Commissioner's Privacy Policy is available.

Step 4A what evidence do I gather?

Evidence is used to establish the facts

Employment situations where the facts may be in dispute include:

Facts in disputes Potential sources of evidence
Rating an employee's performance
  • work level standards
  • performance agreements
  • records of discussions
  • examples of work.
Behaviour during a specific incident
  • witness statements
  • counselling records
  • notes in a diary.
Record of attendance to justify an attendance management plan
  • flex sheets
  • attendance records
  • leave applications
  • physical access data or swipe-card records.

Evidence must be relevant and logically support the reviewer's conclusions about the facts.

Where evidence is disputed such as in a harassment case, the complainant does not have to 'prove their case'. 

However, employees making accusations have a responsibility to provide some supporting evidence.

Evidence requirements differ with each case and may be subject to agency policies.

For example, some agency policies don't allow physical access data being used for non-security purposes.

Step 4B how do I assess evidence?

Not all evidence is of equal weight.

The following material draws on Guide 3, Decision Making, Administrative Review Council.

The reviewer evaluates the evidence, applies logic, common-sense and experience.

 

Consider the following…Examples

Reliability

Evidence is more reliable if it:

  • is confirmed or verified from another independent source.
  • is contemporaneous with the event. A diary note made at the time is more likely to be reliable than someone recalling the details months later.
  • is first hand evidence rather than hearsay.

First hand: what a witness to the event says they directly observed.

Hearsay: what someone says they were told by someone else.

In harassment cases, review applicants may complain of incidences where there are no direct witnesses.

A reviewer identifies evidence that corroborates one or other of the parties to the incident, by:

  • contemporary records kept of conversations
  • the accounts of people who spoke to either party immediately after the incident and observed their behaviour
  • evidence of behaviour in other situations that might point to a pattern of behaviour.

Expert opinion

Expert opinion has greater weight.

Reviewers weigh expert evidence by considering:

  • the expert's area of expertise
  • if the expert is giving an opinion about something that is not in their area of expertise.

Absence of evidence

A reviewer does not need positive evidence of each and every matter.

An employee claims a manager has created a bullying culture but there is no evidence. It may be reasonable to conclude that this is not the case.

However, a lack of witness statements about bullying is not in itself evidence of a positive workplace culture. It may be a result of people being afraid to speak out about bullying.

Evenly balanced evidence

When evidence is evenly balanced or inconclusive, you can either:

  • make no finding, or
  • identify other avenues to generate evidence.

If the review applicant suggests relevant avenues, pursue them if practical.

A review applicant may dispute a performance rating. It can be difficult for someone outside the business area to form a view. In such cases, it may be appropriate to give more weight to the manager's opinion of the employee's performance than the employee's opinion.

Where the employee is to be managed for under-performance, reviewers may seek other informed views.

Such as:

  • a manager with relevant experience but works in a different area
  • an external expert.

Conflicts in evidence

People perceive and remember events differently.

Conflicting versions do not mean someone is lying.

It is generally better to focus on what the balance of evidence suggests is the truth of the matter.

For example, rather than focussing on who is more believable, instead consider which account is consistent with other evidence.

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.

Step 5B what to consider when making the decision and reaching the right outcome?

Having collected the information and evidence, considered the context and the review applicant's concerns, you have to decide:

  • the facts in dispute—for example, was an employee's performance at an acceptable standard
  • what was the appropriate outcome or decision in this case.

An agency is able to conduct a review in any way they see fit.

An agency may decide to empower the reviewer to make a different decision to the one made by the manager on the basis of the reviewer's judgement about what was the appropriate or preferable outcome.

Alternatively an agency may confine itself to a consideration of whether the original action/decision was fair and reasonable even if the decision was not one that the reviewer would have made.

All the circumstances of the case are relevant to making a review decision. A reviewer does not need to restrict their review to whether the decision was procedurally fair or it complied with agency policy. A reviewer may consider:

  • the circumstances of the applicant, including their employment history and personal circumstances.
    Ask yourself, 'if I were in this person's position how would I like my employer to treat me?'
  • the applicant's operating environment including operational pressures and management expectations
  • agency interests, including its values framework, its people management framework and its broader objective
  • good people management practice.1

1 The Australian Public Service Commission has better practice publications on a range of topics including recruitment, managing performance, behaviour and attendance. These are available at www.apsc.gov.au/publications.

Step 6A how do I record the decision?

The agency head must tell the employee in writing of (Regulation 5.27(5)):

  • the review decision
  • the reasons for the decision
  • any action to be taken as a result of the review
  • the right to apply for secondary review to the Merit Protection Commissioner.

The review report usually fulfills these statutory obligations.

Step 6B what does an ideal review report contain?

A well-argued and logical review report assists:

  • applicants understand the agency seriously considered the issues
  • in improving employment decision-making and supporting the agency in learning lessons from the review process.

A review report ideally covers the following:

  1. A summary of the applicant's complaint and the outcome being sought
  2. Background information including key undisputed facts such as the applicant's classification level and job and the date of particular incidents
  3. The actions being reviewed
  4. The facts in dispute, the findings on those facts and the evidence relied on to make those findings. Where there is conflicting evidence, setting out the reasons for preferring one lot of evidence over the other
  5. The policy framework
  6. Other relevant issues raised by the applicant such as concerns about procedural fairness
  7. The decision—to confirm, vary or set aside the actions under review—and the response to the outcomes the applicant was seeking
  8. Detailed reasons for decisions, including the reasoning process—the chain of reasoning that leads logically from relevant facts to the decision. Reviewers may benefit from discussing their reasoning with a senior colleague and, depending on the circumstances, a legal adviser.
  9. Advice about secondary reviews by the Merit Protection Commissioner.