Review of Action—underperformance

Key words

  • Procedural flaws
  • performance management
  • right of response to adverse information

Disclaimer

The following case summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice.

Procedural flaws—a breach of the hearing rule of procedural fairness

One of the threshold issues considered by the Merit Protection Commissioner is whether an application for review raises issues of procedural fairness or compliance with agency procedures, or any other concerns that might lead to a conclusion that there were serious defects in the agency decision-making process. The Merit Protection Commissioner is unable to consider the merits of a decision or make an assessment relating to breach or the sanction once a serious procedural defect has been found, regardless of how compelling or otherwise the Merit Protection Commissioner considers the case.

In such a case, the Merit Protection Commissioner is unable to 'cure' a serious procedural defect. The Merit Protection Commissioner will usually refer the matter back to the agency concerned with a recommendation that the decision be set aside and remade by a different decision-maker.

It is an important element of procedural fairness that there must be evidence in the form of facts and information to support all adverse findings. Adverse decisions should not be based on a view of an employee based on their reputation, gossip and rumour.

The hearing rule of procedural fairness requires that a person whose interests could be adversely affected by a decision should be provided with sufficient information to allow them to make effective use of the right to respond and present arguments.

Case study

A team leader sought review of the decision to reduce their classification as a result of underperformance. The concerns about the team leader's performance in large part concerned their capacity to manage staff effectively.

The team leader's performance was subject to review under the agency's managing underperformance guidelines and the reviewer recommended a reduction in classification. A copy of the review report was provided to the team leader for comment, before the delegate made a decision.

The reviewer's report and the team leader's response were provided to the delegate with a covering report from the human resources manager. In that report, the human resources manager raised additional concerns about the team leader's performance, including a complaint the human resources manager had received from an employee representative about the team leader's management of staff and the human resource manager's own observations about the team leader's management style. These concerns were not provided to the team leader and no opportunity was provided to make any comments.

The Merit Protection Commissioner found that, as a result of the human resources manager's report, new issues and evidence were put to the delegate that were directly relevant to the matters under consideration and that were adverse to the team leader. In the view of the Merit Protection Commissioner, the failure to advise the team leader of the additions to the case against him and to afford the team leader a reasonable opportunity to respond before reducing his classification, failed to comply with the requirements of procedural fairness. The Merit Protection Commissioner recommended that the decision to reduce the employee's classification level be set aside as procedurally flawed.