Disclaimer: The following summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice .
Key words: EL1 employee—non-support for an application for study—confirmed.
An Executive Level (EL) 1 employee sought a review by the Merit Protection Commissioner under regulation 5.29 of the Public Service Regulations 1999 of a decision by line management not to support undertaking a module of study.
The agency provided a corporate programme of part-time post graduate study, with the aim of enhancing relevant business capability.
Applications opened for studies in semester 1 and the applicant sought endorsement to undertake a module from the supervisor. The application was not supported and, after an internal review, the applicant sought a secondary review.
In the review application, the applicant acknowledged that the first outcome sought from the primary review—gaining approval for the course—was no longer possible but also sought the second outcome:
By confirming the ground rules, I hope to have correct management consideration and processing of my course applications as well as to ensure that the decisions are made in accordance with departmental…instructions.
The relevant sections of the agency's certified agreement, policies, manuals and supporting guidelines note that, it is a fundamental responsibility of every manager and supervisor in the organisation to develop the skills and capacities of the people for whom they are responsible. Employees and supervisors are jointly responsible for having a current performance agreement and identifying resourced learning and development activities in support of key expected results and future development needs.
The eligibility requirements for the programme included satisfactory work performance, successful completion of probation, meeting university entrance guidelines, and endorsement from the employee's supervisor. Employees were also required to discuss participation in the programme with their supervisor and include it in their performance agreement.
The application form required the supervisor's signature and the summary guide indicated endorsement was required from both the supervisor and relevant First Assistant Secretary (FAS) or equivalent.
Selection for the participation in the programme was based on:
- the potential benefit of the proposed programme to the needs of the organisation
- the applicant's ability to successfully complete the programme and to apply the skills and knowledge derived to the organisation's work outcomes
- the benefit of the proposed programme to the needs of the staff member.
The application for primary review stated as the reasons for the review:
In summary I believe an incorrect decision was initially made on a misunderstanding of funding, processes involved, purpose, implementation of the CEI [Chief Executive Instruction] and how the application would be received…
The applicant's supervisor stated in an email:
I spoke with [the next line manager] about your planned enrolment. At this stage the enrolment won't be supported. I would suggest, however, applying for the following semester, providing more notice for the application, especially given the FAS is required to sign off on it—as the division contributes the funding of these courses.
A number of discussions and email exchanges were held with a variety of parties to clarify eligibility and approval issues. These included whether or not training was in the applicant's performance agreement, the status of that performance agreement, conflicting advice as to the role of the FAS and the actual funding delegations.
The applicant then provided an email to the supervisor, which 'addressed each of the points raised by [the supervisor]' for not supporting the training programme, in order to address the 'misunderstandings' of the manager. Having done so, as far as the applicant was concerned:
...at this stage of the process I felt that [the supervisor] had lacked the appropriate information and on being made aware of it would support the application.
The email did not have the desired effect and instead of the supervisor supporting the training programme, the applicant said 'new and more nebulous reasons for refusing to support this application have appeared'. The issue was then escalated to the next line manager, who also advised the applicant of non support for the application. A subsequent email from that line manager stated:
…my reasons are that I believe opportunities and resources spent on these more substantial training courses need to be balanced between work output demands, training needs, prior training opportunities given the equity across staff. In your particular case I believe that a generous amount of time and freedom has been given to you in recent times to complete your PhD over a number of years. I would now hope that you will focus on employing those skills obtained into generating solid outcomes and achievements aligned with [the organisation's] priorities.
The applicant had concerns with many of the aspects of the email. The applicant agreed completely with the statements about management prerogative to recommend training to staff and when it might be taken, but did not agree with the basis on which it had been exercised on this occasion. The applicant acknowledged management's right to refuse attendance in training modules, but having either met or addressed the eligibility requirements, believed the refusal should be on 'reasonable grounds'.
The internal primary review determined that the decision made was reasonable as management could choose what training and development activities could be undertaken and when, and that the request by line management for the applicant to concentrate on embedding the skills gained from the PhD was not in conflict with the programmes, policies and guidelines or relevant organisational policies.
In the secondary review application, the applicant argued that the primary review was deficient in that it did not focus on the original decision by the supervisor.
An email from the supervisor about the decision made clear that there had been a discussion between both the next line manager and the supervisor, and that enrolment was not supported. It suggested however that enrolment the following semester be sought. It then provided some general advice on giving more notice, for reasons not directly related to the issue of approval. This initial decision not to support the training program was non-specific in its reasons for the refusal.
In the absence of detailed reasons, it was reasonable for the applicant to focus on those matters which were referenced in the email. However, there was no obligation on the supervisor to support the application.
It was inherent in the agency policy that staff would not necessarily be accepted into the programme simply because they had put in an application. Whilst assessment criteria were specified in the policy, eligibility included supervisor endorsement. This was confirmed with the applicant by HR on two occasions, stating 'just reiterating that your management still has the prerogative about whether to support you ...'.
The certified agreement required training to be supported in the context of a proper use of resources and operational requirements and, that training should take into account a range of considerations, including previous opportunities. Supervisor endorsement would therefore reasonably occur taking those matters into account.
With respect to the performance agreement, the Merit Protection Commissioner considered that just because a reference to undertake further training is included, this did not give rise to an automatic obligation to support the application. Further, any obligation could only have been to support what was actually in the performance agreement, which was general in nature. The applicant was advised to submit an application for the 2nd semester, which was consistent with the performance agreement. In that regard, the latter application was subsequently successful.
The Merit Protection Commissioner noted that the applicant received mixed messages during the process as far as reasons for decisions were concerned, and that a more fulsome explanation of the matter in the initial stages might have assisted acceptance of the decision. However, the Merit Protection Commissioner also noted that supervisor support was a requirement for an application, and that support had to be considered taking into account all management obligations and objectives, as articulated through the various policy documents.
Given those requirements, it was reasonable for the supervisor to have discussed the matter with the next line manager before advising the applicant that the application would not be supported. On the material provided, it was clear that the next line manager agreed with the initial decision, and it was reasonable for the line manager to further articulate the reasons for the decision when issues were directly raised by the applicant.
In all the circumstances, the decision was a reasonable one open to the agency's management to take.
For the reasons discussed above the Merit Protection Commissioner recommended that the decision under review be confirmed.
Lessons learnt: reasonable people may take different approaches to discretionary decisions. It is important for the reasons for a decision to be provided and explained. Because different views are held does not make a particular decision unfair or unreasonable. In this case it was open to management to decide which courses of study should be supported to enhance business capability and the decision was a reasonable one in the circumstances.