Ongoing employment – Recruitment and related issues

Please note: This document is no longer current and is provided for reference purposes only.

Frequently Asked Questions

8. Can an employment decision be cancelled?

Engagement

In the context of an engagement decision, an Agency Head has the power to do two things which are separated (if only briefly) in time:

make a decision to engage a person
actually engage a person so that, from a particular time, it can be said that the person is an APS employee (section 22).

A person is not actually engaged as an APS employee until a decision to engage them as an APS employee takes effect.

When a decision has been made to engage a person with effect from a nominated date in the future, the decision can be cancelled at any time up until the engagement takes effect.

This does not mean that the power to cancel an engagement decision is completely unfettered. The decision must conform to the usual requirements imposed by administrative law (see question 3.11 in this Chapter).

Agencies should note that the fact that the power exists to cancel an engagement does not mean a person has no other right of legal action, particularly if they have relied to their detriment on a representation, negligently made.

Assignment of duties—including promotion

An Agency Head may from time to time determine the duties of an employee in the agency and the place(s) at which the duties are to be performed (section 25). Section 25 is also the source of power to promote an APS employee within the agency by assigning duties at a higher classification.

Decisions on assignment of duties ordinarily take effect from the date determined by an Agency Head. While it is possible to cancel an assignment of duties before it takes effect, this is not necessary as a further determination could be made which simply overtakes the earlier one.

A promotion decision within an agency under section 25 of the Act takes effect in accordance with Regulation 3.8. A promotion decision can be cancelled by the Agency Head before the decision takes effect. Cancellation decisions should conform to the requirements of administrative law as discussed in the section on engagement and in question 3.11 in this Chapter.

Voluntary moves between agencies—including movement associated with a promotion

Section 26 provides that an Agency Head can enter into a written agreement with an APS employee for that employee to move to the agency and that the agreement has effect according to its terms.

Generally speaking, an Agency Head does not have the power to unilaterally cancel an agreement entered into under section 26 unless the agreement permits this. If the agreement does not address grounds for cancelling a move, the agreement can only be cancelled or varied by further written agreement.

It is good practice, therefore, for an agreement to include a provision which enables the move to be cancelled if either party chooses to withdraw from the agreement. The agreement can either list events where cancellation is possible, or provide that the post-move Agency Head or the employee can withdraw from the agreement at any time before it takes effect.

Examples of situations where an agency or an employee may wish to cancel a move include:

the move involves a promotion and the promotion is overturned by a Promotion Review Committee (PRC)
information becomes available which may have influenced the outcome had it been known during the selection process
the Agency Head becomes aware of a serious defect in the selection process
the employee has been selected for two or more opportunities that have been gazetted concurrently, or within the application period for review of the proposed promotion, and the employee opts for another promotion
there are unanticipated changes to the employee's personal circumstances
there is an unanticipated reorganisation within the agency.

Notification of a cancellation

An Agency Head must notify in the electronic APS Employment Gazette the cancellation of any employment decision that has already been notified in the relevant section of the Gazette (Regulation 3.12A).

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