Review case—decision not to offer voluntary redundancy not reviewable

An employee applied to the Merit Protection Commissioner for review of their agency's decision not to offer them a voluntary redundancy at the completion of an expression of interest and assessment process. The employee submitted that the assessment process was flawed and sought a recommendation from the Merit Protection Commissioner that the agency offer a voluntary redundancy.

The Merit Protection Commissioner noted that a wide range of decisions related to voluntary redundancies are not reviewable actions. Regulation 5.23(2) provides that those actions mentioned in Schedule 1 to the Regulations are not reviewable and this includes, at item 1, 'Action about the policy, nature, scope, resources or direction of the APS or an Agency'.

The Merit Protection Commissioner considered that a range of decisions about voluntary redundancies are inherently about one or more of the elements listed in item 1 and are therefore not reviewable. These include decisions about whether or not voluntary redundancies will be offered; the business areas, classifications and locations in which they will be offered; and the number that will be offered. However, the Merit Protection Commissioner also considered that actions taken to implement the relevant policies or processes are not excluded by item 1 and, unless otherwise excluded, are reviewable actions.

In this case, the Merit Protection Commissioner decided that review of the action was not otherwise justified in all the circumstances as provided by regulation 5.23(3)(g).

The agency had set assessment criteria for retention of employees with 'unique specialist skills or knowledge' or those undertaking a 'critical role' that could not be performed by others 'without significant adverse business impacts'. The employee disagreed that these criteria applied in their circumstances. The Merit Protection Commissioner agreed that the criteria set a very high bar; however, the assessment panels were required to apply the criteria having regard to general principles that included retaining 'high performing and high potential' employees and those whose exit would cause a 'negative impact to business outcomes'. The employee and the agency's assessment panel had clearly differing views of the meaning to be attached to the criteria. However, the agency had consistently indicated that it wished to retain the employee and, in the circumstances, the Merit Protection Commissioner decided that there was little utility in conducting a review of the application of the assessment criteria and the guiding principles. The Merit Protection Commissioner noted that a voluntary redundancy benefit arises as result of loss of employment at the initiative of the employer and that there is no entitlement to be made redundant.