Final entitlements on separation - Not eligible: complaint about an earlier employment dispute rather than final entitlements

Complaint about entitlements on separation from the APS

Public Service Regulation 7.2

A former APS employee lodged a complaint with the Merit Protection Commissioner about the payment they received for their long service leave entitlement on resigning from the APS. The former employee claimed that the entitlement had not been correctly calculated and they received less payment than they were entitled to.

The former employee alleged that a period of leave without pay (LWOP) five years earlier ought to have counted as service for the purpose of calculating their long service leave entitlement. Prior to their resignation, the former employee had sought review of that decision while still an APS employee. The outcome of the review was that the decision not to count the leave as service was confirmed.

Public Service Regulation 7.2 provides discretion for the Merit Protection Commissioner to investigate a complaint from a former APS employee about their entitlements received on separation from the APS. Any other rights an employee may have had to seek a review of action under section 33 of the Public Service Act 1999 lapse upon separation from the APS.

In this case, the Merit Protection Commissioner determined that the decision not to classify a period of LWOP as service, which had occurred five years prior to the employee’s separation from the APS, was a decision that had occurred in the course of the employee’s APS employment and was not a decision about the calculation of their final payout.

Although there were a large number of decisions taken during the course of the employee’s employment that had a consequential but indirect effect on their final salary payment, including decisions in relation to the classification of leave, promotion and performance ratings, the employee’s option to seek review of those matters lapsed upon their separation from the APS.

As a result, the Merit Protection Commissioner declined to investigate the employee’s complaint, as it did not relate to the calculation of their final entitlements on separation from the APS.