Review of actions

Role of the Merit Protection Commissioner

The Merit Protection Commissioner is an independent statutory office holder established under section 49 of the Public Service Act 1999 (the Act). Among other functions, the Merit Protection Commissioner conducts reviews of employment-related decisions and other actions affecting individual Australian Public Service (APS) employees.

To view the Merit Protection Commissioner's Review of Action Instructions please go to www.apsc.gov.au/merit/reviewactionsinstructions.htm.

The Merit Protection Commissioner is assisted by staff of the Australian Public Service Commission.

What actions or decisions are reviewable?

Under section 33 of the Act, APS employees are entitled to review of actions or decisions that relate to their APS employment. These review rights are available to all APS employees with the exception of the Senior Executive Service.

The types of employment matters that are reviewable are not significantly limited by legislation. However the Act and Public Service Regulations exempt certain employment actions from review, including termination of employment.

For further information on the limits on review see Public Service Regulation 5.23 and Schedule 1 to the Regulations.

Making an application for review does not prevent an agency from proceeding with an action, or implementing a decision.

Primary and secondary review

The legislation requires that an APS employee applies to his or her agency head for review in the first instance for the majority of employment-related decisions and actions.

The reviews conducted within agencies are called primary reviews. Applications for primary review are made under Public Service Regulation 5.24.

When an agency receives a valid review application it is required to:

• review the action and attempt to resolve the employee’s concern
• advise the employee in writing of the outcome; the reason for the decision; and any action the agency intends to take
• advise the employee of their right of review by the Merit Protection Commissioner.

If the employee is dissatisfied with the outcome of the agency’s review, or the agency has advised that the matter is not reviewable, the employee may make an application for secondary review to the Merit Protection Commissioner. Applications for secondary review are made under Public Service Regulation 5.29.

Applications for primary review can be made directly to the Merit Protection Commissioner in certain circumstances prescribed in Regulation 5.24. These are:

• for review of a decision that an employee has breached the APS Code of Conduct and/or of the resulting sanction (see Review of Breaches of the APS Code of Conduct)
• if the employee’s agency head was directly involved in the relevant action or decision
• where it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the review application
• where the employee claims that the relevant action or decision is victimisation or harassment because of having made a previous application for review.

Time limits for review applications

On 2 August 2010, changes to the Public Service Regulations came into effect that alter the time limits for making applications for both primary and secondary reviews.

The changes are designed to better meet the policy objectives that reviews be conducted quickly, fairly and impartially and that productive and harmonious workplaces be encouraged.

There will be a transition period in which the time limits for review will vary.  This will depend on the date of the action, or decision, which the employee wishes to have reviewed.  The critical date is 2 August 2010.

Before 2 August 2010

For actions that occur, or decisions that are made, before 2 August 2010, an employee must apply for a review within 12 months of the action or decision.  The 12 month timeframe applies both to applications made to the:

• agency for primary review
• Merit Protection Commissioner for primary review (including Code of Conduct decisions)
• Merit Protection Commissioner for secondary review.

Applications received outside that timeframe will only be reviewed if there are exceptional circumstances to explain the delay in making the application.

From 2 August 2010

Actions that occurred, or decisions made, on or after 2 August 2010 are subject to revised time limits.  The time limits are for:

• applications for primary review made to the employee’s agency – 120 days from the date of the action
• applications for primary review of a breach of the Code of Conduct  – 60 days from the determination of the breach
• applications for primary review of a sanction imposed for breaching the Code of Conduct – 60 days from the imposition of the sanction
• other applications for primary review made to the Merit Protection Commissioner (for example where the agency head was directly involved in the action) – 60 days from the date of the action
• secondary review applications – 60 days from the date the agency tells the employee of either the outcome of the primary review or that the matter is not reviewable.

Applications received outside that timeframe will only be reviewed if there are exceptional circumstances to explain the delay in making the application.

Further details are on the new time limits are available on the website at the following sites:

• Circular 2010/3
• Amendment Regulations
• Frequently Asked Questions

How do you apply for review?

Contact your agency’s human resources area for advice on how to make a review application to your agency head or check your agency’s intranet.

Applications for primary review by the Merit Protection Commissioner can be made directly to the Commissioner. These should be addressed to:

Merit Protection Commissioner
Australian Public Service Commission
PO Box 20636
World Square Post Office
SYDNEY NSW 2002

or by email to review@apsc.gov.au.

Applications for secondary review by the Merit Protection Commissioner must be made through your agency head. This means that you need to address the application to your agency head advising that you wish the matter reviewed by the Commissioner. Your agency should then forward your application and the relevant agency papers to the Commissioner.

All applications must:

• be made in writing
• state why the review is sought
• if a particular outcome is sought, state the outcome sought.

How will your application for review be handled?

Reviews conducted by the Merit Protection Commissioner are required to have regard to procedural fairness, be conducted in private and be finished as quickly, and with as little formality, as a proper consideration of the matter allows.

First, staff assisting the Commissioner will acknowledge your application and advise you whether it has been accepted. Then, if papers have not already been received from your agency, the reviewer will ask for copies of all relevant papers. In some cases, it may be possible to conduct the review solely by an examination of the papers. Where necessary, the reviewer may investigate further by seeking additional information from your agency and by interviewing you and/or other persons. Interviews with a reviewer are done in person either at a Commission office or over the telephone.

While you are welcome to have a person support you throughout the review, you are not able to be represented by another person. If you wish to have someone represent you, you will need to make a formal request to the Merit Protection Commissioner stating your reasons.

In most cases, a review by the Merit Protection Commissioner will address the following issues:

• whether your agency’s procedures for dealing with the particular matter in question were substantially complied with in your case
• whether the requirements of procedural fairness were substantially observed in your case
• whether the action or decision under review was appropriate or reasonable in the circumstances of the case.

Outcome of the review

The Merit Protection Commissioner can make recommendations to your agency head about the matters under review. The Merit Protection Commissioner cannot impose an outcome on your agency nor can the Commissioner substitute a diff erent decision from that made by your agency.

When the review is finished you will be advised of the result and the Commissioner’s recommendation. If it is concluded the agency has not acted wrongly, the Commissioner will explain to you why that view was reached.

On the other hand, if the Merit Protection Commissioner is satisfied that the decision under review was in some way unreasonable, the Commissioner may recommend that the agency:

• set aside the decision and consider whether the relevant process should be re-done
• vary the decision
• change its procedures
• take some other appropriate action.

An agency cannot be forced to do what the Commissioner recommends. However:

• agencies usually act on the Commissioner’s recommendations and are required to give reasons for their decisions
• if the Merit Protection Commissioner is not satisfied with the response, the Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.

What if you are still not satisfied?

There is no further right of administrative review under the Act or the Regulations.

To take the matter further, you would need to apply to a court for judicial review, under the general law or the Administrative Decisions (Judicial Review) Act 1977. In such cases, it would be prudent to seek independent legal advice.

Who to contact

Inquiries should be directed to the Review Team, Australian Public Service Commission Sydney, on phone: 02 8239 5330 or by email to review@apsc.gov.au.

Frequently asked questions

General questions

When does the 60 or 120 days start?

Day 1 is the first day after the employment action occurs.¹

What if Day 60 or 120 is not a work day?

If Day 60 or 120 is a Saturday, a Sunday or a public holiday, then the period extends to the next working day.² The application would be in time until close of business on that next working day.

What about time zones and daylight saving?

If an agency has employees in more than one time zone, its review procedures should specify what is meant by close of business (COB). There are two possible options.

The agency may specify that COB in a particular area is the cut-off point regardless of where the employee is based—for example, the cut-off time for all employees could be 5pm Eastern Standard Time (incorporating any daylight saving time).

Alternatively, an agency may specify that reviews may be lodged by COB in the state or territory in which the affected employee is based—for example 5pm WA time for employees based in Western Australia.

Applications for review of action lodged with the Merit Protection Commission must be received by COB 5pm Eastern Standard Time (incorporating any daylight saving time) unless there are exceptional circumstances.

In a secondary review which day is Day 60?

An application for secondary review by the Merit Protection Commissioner must be made through the agency head.³ Within 14 days after receiving the application, the agency head must give the application and any relevant information to the Merit Protection Commissioner.⁴

For the application to be in time the employee must apply for review to the agency head by close of business on Day 60. The 14 day period in which the agency must send the application and papers to the Merit Protection Commissioner is not counted as part of the 60 days.

Can an application for review be accepted outside the relevant time limits?

An application made outside the relevant time limits is not reviewable unless the agency or the Merit Protection Commissioner agrees with the applicant that there are exceptional circumstances for the delay. The term ‘exceptional circumstances’ is not defined in the Regulations. However, the term ‘exceptional’ has a commonly accepted meaning. It describes a circumstance which is out of the ordinary course, or unusual or special or uncommon. This is consistent with the definition in the Macquarie Dictionary of ‘exceptional’ which it defines as ‘forming an exception or unusual instance; unusual; extraordinary’.

A decision by an agency to accept an out of time primary review application does not oblige the Merit Protection Commissioner to accept a subsequent request for secondary review that is out of time. The two decisions are separate ones and the exceptional circumstances ‘test’ must be met on both occasions.

When is the best time to lodge an application for review?

Employees are encouraged to lodge their application for review as soon as possible after the employment action in question occurs. There are benefits in doing this:

• people’s recollections of events or decisions are usually less accurate as time passes
• the employee’s concerns can be addressed which may prevent further escalation of conflict
• by dealing with the issue the workplace can become more harmonious and productive again

• desired review outcomes may be more achievable in the shorter term given changes that can occur in workplaces.

Such an approach is consistent with the intent of the Regulations that an employee’s concerns are to be dealt with quickly, impartially and fairly.⁵

Scenarios

1. Scenarios involving employment actions occurring on or after 2 August 2010

The scenarios below assume that there are no exceptional circumstances for a delay in applying for review.

Review of Action

Scenario 1(a):
Thomas applies for study leave on 4 August 2010 and is advised on that day by his supervisor that the study leave will not be granted.

Thomas has 120 days to lodge a review of action with the agency head. In this scenario Day 1 is 5 August 2010 and his application would need to be lodged by close of business (COB) on Day 120—that is by COB 2 December 2010.

Scenario 1(b):
Nicole is advised by her supervisor on 6 August 2010 that her performance rating is less than satisfactory. Nicole has 120 days to lodge a review of action with the agency head. In this scenario Day 1 is 7 August 2010 and Day 120 is Saturday 4 December 2010. The latest for the application to be lodged and be in time would be close of business Monday 6 December 2010.

Scenario 1(c):
Dianne successfully applied for a place in a training program to be held in December 2010. On 10 September 2010 she was advised by her manager that she could not be released. Diane sought a primary review of the decision not to release her with the agency head on 15 September 2010. The primary review was finalised on 4 November 2010. If Dianne is not satisfied with the outcome of the primary review she has 60 days to lodge a review of action with the Merit Protection Commissioner. In this scenario Day 1 is 5 November 2010 and Day 60 is 3 January 2010.

Code of Conduct

Scenario 1(d):
On 2 August 2010 Lee receives a letter advising that the delegate has determined that he has breached the Code of Conduct and seeking his comments on a possible sanction. Lee has 60 days to lodge a review application with the Merit Protection Commissioner in relation to the breach determination. In this scenario, the application needs to be lodged by close of business (COB) 1 October 2010.

Lee would like to wait and see what, if any, sanction is imposed before he lodges his review application on the breach determination. He is informed of the sanction on 6 September 2010. Lee now has until COB 5 November 2010 to lodge his application for review of the sanction decision with the Merit Protection Commissioner. The date to lodge a review application for the breach of the Code of Conduct is unchanged.

If Lee applies for a review of both the breach determination and the sanction decision by COB 1 October 2010 he would meet the time limit for review of both determinations. If he applies for a review of both the breach determination and the sanction decision on or after 2 October 2010 and before COB 5 November 2010:

• the breach determination would be outside the 60 day time limit
• the sanction decision would be within the 60 day time limit.

2. Scenarios involving employment actions occurring before and after 2 August 2010

The scenarios below assume that there are no exceptional circumstances for a delay in applying for review.

Scenario 2(a):
In March 2010 Michael lodged an application for a primary review of a decision not to grant him miscellaneous leave without pay with the agency head. There were some delays and he is advised on 4 August 2010 of the outcome of the primary review. Michael has 60 days (until close of business 4 October 2010—the next working day) to seek a secondary review from the Merit Protection Commissioner, unless there are exceptional circumstances.

Scenario 2(b):
On 27 July 2010 George received a letter advising that the delegate had determined that he had breached the Code of Conduct and seeking his comments on a possible sanction. George has one year (until close of business (COB) 27 July 2011) to lodge an application for review of the Code breach determination with the Merit Protection Commissioner.

He is informed of the sanction decision on 20 August 2010. George has 60 days (until COB 19 October 2010) to lodge his review application on the sanction decision with the Merit Protection Commissioner unless there are exceptional circumstances.

3. Scenarios involving employment actions occurring before 2 August 2010

The scenarios below assume that there are no exceptional circumstances for a delay in applying for review.

Scenario 3(a):
Stacy receives her performance rating on 8 July 2010. As the decision was made before the commencement of the amended Regulations Stacy has a year (until close of business 8 July 2011) to lodge an application for a primary review with the employing agency unless there are exceptional circumstances.

Scenario 3(b):
On 25 November 2009 Amrita received a letter advising that the delegate had determined that she had breached the Code of Conduct and seeking her comments on a possible sanction. Amrita has one year to lodge an application for review of the Code breach determination with the Merit Protection Commissioner (by close of business 25 November 2010).

She is informed of the sanction on 3 February 2010. Amrita has one year (until 3 February 2011) to lodge her review application of the sanction with the Merit Protection Commissioner.