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: APS 6 employee—non-reimbursement of relocation costs—transfer in the interest of the APS—confirmed.
An APS 6 employee sought a review by the Merit Protection Commissioner under Public Service regulation 5.29 of a decision by management not to reimburse the relocation costs associated with the applicant's move between agency offices.
The applicant moved between the agency's offices due to personal issues associated with their partner who also worked for the agency. Some months later, the applicant sent an email to senior management requesting reimbursement of relocation costs incurred in the sale and purchase of homes and temporary accommodation allowance. The applicant was given verbal advice of the refusal of reimbursement on the basis that reimbursement was not in the interest of the agency, and therefore the APS. The applicant then received written advice via email of the delegate's decision.
The applicant applied for a primary review of the delegate's decision. The primary review confirmed the agency's original decision.
The applicant requested secondary review by the Merit Protection Commissioner and noted:
[Senior management] arranged the transfer as the resolution of a problem that did not involve me [the applicant] and failed to follow published policy in relation to transfers generally.
The applicant also stated:
The agency directed me to transfer to another agency office as part of the solution to [the applicant's partner's] complaints and I should not be subject to any financial burden that should be borne by the Agency in resolving the original matter.
The applicant sought reimbursement of relocation costs and for the agency procedures to be improved.
The agency's certified agreement, which was the relevant industrial instrument, noted that:
Unless otherwise specified, eligible transferred employee means an employee permanently moved from one locality to another… where the move is in the interest of the APS or on promotion.
There were clauses in the agreement that provided for an eligible transferred employee to be paid a range of relocation expenses associated with their move to the new locality. These included reasonable expenses incurred in the sale and purchase of their home and an allowance to cover temporary accommodation expenses at both the previous and the new locality.
The agency guide on transfers set out a more detailed description of 'eligible transferred employee' and specifically noted that:
Before accepting a job in a new locality, employees should confirm with the gaining area whether they are considered to be an eligible transferred employee.
It then provided further details about responsibilities, delegations, eligibility and allowances.
As stated above, the agreement provided that removal expenses may be reimbursed for an 'eligible transferred employee' who is an employee permanently moved from one locality to another and 'where the move is in the interest of the APS or on promotion'.
The applicant claimed that the move was in the interest of the agency (and therefore the APS) as it was instrumental in the agency solving a problem associated with the applicant's partner. The applicant stated that the move was not at their request, not voluntary and the applicant had not been consulted. The applicant had agreed to the transfer out of concern for their partner.
Senior management indicated as part of the primary review:
… the transfer was not initiated by agency management, and would not have been considered if [the] applicant's partner had not requested the transfer as a 'condition' of …acceptance of an offer of a transfer … to another role in a different location.
On primary review of the decision the delegate advised that:
…the transfer of the applicant to another office was not initiated by the agency and the officer was not directed to move. Rather, it was a voluntary move that the officer took and that the parties involved [the applicant's partner] wanted the move. [The delegate] considered this to be 'pretty black and white' and that this was the basis of his decision not to approve the claim.
In a statement to the Merit Protection Commissioner the applicant stated:
The delegate had an obligation to be aware of the relocation assistance … and to advise me so I could make a considered decision. The delegate in failing to speak (let alone gain approval) to a release from my manager/director also ensured that any advice for relocation assistance would not be forthcoming.
In this regard, the Office noted that the agency guide under the subheading 'Before accepting a movement/engagement', specifically states that there is an onus on employees to familiarise themselves with the entitlements that are available under the policy and that where an employee has moved without confirming their entitlement, they will be responsible for bearing the cost of the relocation.
The Merit Protection Commissioner considered it was for the delegate to determine whether or not an employee meets the requirements of an 'eligible transferred employee', including the public interest requirement. In making the decision that the move was not in the interest of the APS, the delegate considered relevant information and had regard to agency policy.
The question for the Merit Protection Commissioner was whether due consideration had been given to factors that must be considered in accordance with relevant policies and whether in this case the decision was reasonable.
In all the circumstances, the Merit Protection Commissioner considered that the delegate had sufficient information to enable proper consideration of the applicant's request, that due consideration was given to factors that must be considered in accordance with the relevant policy, and that the decision reached was a reasonable one.
For the reasons outlined above, acting under Public Service regulation 5.31, the Merit Protection Commissioner recommended to the agency that the decision under review be confirmed.
Lessons learnt: staff and management have a responsibility to inform themselves of the eligibility and conditions of discretionary entitlements before action and decisions are made.