Cancellation of employment decisions

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Overview

The person who has the authority to make an employment decision (including engaging, promoting or moving an APS employee) under the Public Service Act 1999 (PS Act) also has the power to cancel or vary that employment decision at any time before it takes effect.

Note: the agreement for an employee to move between APS agencies in accordance with section 26 of the PS Act is not an employment decision.   

Generally, it would be expected that the same decision maker that made the employment decision exercises the power to revoke or vary the decision. However, in certain circumstances an alternative decision maker (at the same or higher level) may be required to exercise this power; for example, if there is a reasonable basis to cancel or vary an employment decision and the original decision maker is indisposed or unavailable.

Before cancelling an employment decision, there are a number of considerations the decision maker may take into account including that:

  • procedural fairness is observed in the decision making process, including giving the employee a reasonable opportunity to comment
  • the decision is made fairly, in good faith, taking into account only relevant considerations and
  • the power to cancel or vary is exercised reasonably.

Cancelling an employment decision may be considered in a range of circumstances, including where an APS agency decides not to proceed with a recruitment action due to operational requirements. Other circumstances may include:

  • the individual decides they no longer want to continue with the employment decision
  • a promotion is overturned by a Promotion Review Committee
  • information becomes available which may have influenced the outcome had it been known during the selection process, for example the individual has provided incorrect or misleading  information as part of the application process or
  • the Agency Head becomes aware of a serious defect in the selection process.

Once an employment decision takes effect, a decision maker should not vary or cancel the employment decision. Given the significance of cancelling an employment decision, agencies should consider seeking legal advice.

Notification requirements

Agencies are required to notify a decision to cancel an employment decision within 3 months of the cancellation decision being made if the engagement or promotion was notified in the Public Service Gazette. Further information can be found on the Public Service Gazette Requirements webpage.

Cancelling a movement between agencies

Section 26 of the Public Service Act 1999 (PS Act) allows an Agency Head to enter into a written agreement with an ongoing Australian Public Service (APS) employee in another agency to move the employee to their agency (a section 26 movement).

A section 26 movement is not an employment decision made by a decision maker, although the decision to enter into an agreement on behalf of the Agency will have been made by a decision maker. Therefore no single party to a section 26 agreement has the power to unilaterally cancel or vary the term of a move, unless this is permitted in the terms of the agreement.

If the agreement does not stipulate the grounds for cancelling or varying a move, the move can only be cancelled or varied by further written agreement between the parties in accordance with section 46(3) of the Australian Public Service Directions 2022.

Agencies may consider including a provision in the agreement which enables the move to be cancelled if a party chooses to withdraw from the agreement prior to it coming into effect. For example, the agreement may either list events where cancellation is possible, or provide that the receiving agency or the employee can withdraw from the agreement at any time before it takes effect.

Machinery of Government changes and employment decisions

Information on Machinery of Government changes is set out in the People Management chapter of the Machinery of Government Changes guide.

Further Information

HR practitioners seeking more information on cancelling employment decisions can contact the Employment Policy team via employmentpolicy@apsc.gov.au or call the advice line on
(02) 6202 3857.

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