Part 5: Annual report of the Merit Protection Commissioner

Last updated: 31 Oct 2012

This page is: current

The Honourable Julia Gillard MP
Prime Minister
Parliament House
Canberra ACT 2600

Dear Prime Minister

I am pleased to present the Merit Protection Commissioner’s report for the period 1 July 2011 to 30 June 2012 as part of the Australian Public Service Commissioner’s annual report required by section 51 of the Public Service Act 1999.

This report is prepared in accordance with the guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit as required by section 51(2) of the Public Service Act 1999.

In presenting you with the report on the activities of the Merit Protection Commissioner, I take this opportunity to express my thanks to the staff of the Australian Public Service Commission for their assistance in what has been a challenging but productive year.

Yours sincerely

Annwyn Godwin
Merit Protection Commissioner
October 2012


Overview

As an independent administrative review body for employment decisions in the Australian Public Service (APS) my major goals are:

  • to ensure fair and consistent standards of decision-making about employment matters across the APS
  • to encourage positive, respectful and professional workplace relationships
  • to add value to the debate on human capital management by drawing on the lessons learned from the review and employment services experience.

As foreshadowed in my last report, the year 2011–12 has been a challenging one in meeting my goals and my performance targets for the review function. I have used the recommendations of an independent review I commissioned to develop a program of reform focusing on capability development within my office and improved review case management strategies.

In addition to performing my statutory review and fee-for-service functions, I have continued to support the Public Service Commissioner with his statutory responsibility of promoting the APS Values, including through speaking engagements and chairing the Ethics Advisory Group and meetings of the Ethics Contact Officer network. As a member of the Australian Public Service Commission’s Executive, I have contributed to the corporate governance of the Commission (see also the Public Service Commissioner’s annual report).

My report is divided into three parts—a focus on the year’s activities and the outlook for 2012–13, a review of performance, and the governance arrangements applying to my role. Case studies highlighting issues raised in review cases finalised in 2011–12 are included throughout this report.

Focus on the year

Last year I reported on the structural changes within the Commission that moved the delivery of the review and fee-for-service function to the Sydney regional office. As I foreshadowed, this change continued to affect the review function in 2011–12 as the newly established office became operational and the review staff gained experience. My major aim was to improve timeliness while maintaining the quality of the reviews undertaken by my office and we made significant progress in finalising cases carried over from the previous year.

Supporting the review and fee-for-service teams and monitoring performance has occupied a considerable proportion of my time as I took a more ‘hands on’ role with all my statutory functions. One advantage is that I have been exposed in more depth to the operational aspects of my role. This has served to reinforce the importance I place on streamlining and modernising the review and fee-for-service functions to deliver efficient and quality services to agencies and APS employees.

Review and fee-for-service

At the end of 2010–11 I faced a situation of an increased number of cases on hand, an increase in case lodgment and an increase in the time taken to finalise reviews. While there were valid reasons for this situation, it needed to be addressed. I was conscious that unresolved reviews and disputes impact on employees’ engagement and productivity and in some cases have an impact on overall performance, particularly if a review stemmed from unresolved systemic issues within an agency.

Independent review

To assist in addressing this issue, I commissioned a review of the function and, in July 2011, engaged an independent consultant. The review examined the efficiency of the review function in the context of the policy intent of the scheme, good practice in review of administrative decisions and good practice in client service.

The consultant reported on 31 August 2011 and made recommendations in six areas:

  • developing a more strategic approach, including developing a risk management approach, improved statistical analysis of performance, and defining the roles and responsibilities of the staff involved in the review function with a view to establishing clearer reporting lines and workflows
  • amending the Public Service Regulations 1999 (the Regulations) to improve the operation of the scheme in line with the policy intent in the Public Service Act 1999 (PS Act). (Some of these were underway as part of the amendments to the PS Act—see ‘Amendments to legislation’.)
  • building the capabilities of the review team
  • managing the relationship between the Merit Protection Commissioner and agencies to improve information flows and feedback to agencies on their people management practices
  • resourcing the function, including improving the information on which resourcing decisions are based
  • developing a strategy to balance the flow of new cases and manage the caseload carried over from previous years.

I have used the recommendations to develop a program of reform for the review function. All recommendations except one were accepted in full, in principle or in part. The only recommendation not accepted was the formation of a pool of skilled investigators from larger agencies to supplement resources at peak times. Building the capability of an external pool of investigators in this way is a resource-intensive task which, coupled with staff turnover, would be unlikely to deliver the required efficiencies.

Resourcing and capability development

Following discussions with the Public Service Commissioner, and more widely across the Commission and the APS, I was able to allocate temporary additional resources to the review (and whistleblower) functions including two part-time delegates and two part-time advisers. Due to the technical nature of the work and the long lead times for training, these advisers were drawn from staff who had formerly worked for the Merit Protection Commissioner. I am appreciative of the external assistance from the Department of Human Services, the Fair Work Ombudsman and the Human Capital Research and Evaluation Group in the Commission in making their employees available to my office and for the whole-of APS commitment this displayed.

Another ongoing full-time adviser was also allocated to the review function within the Ethics Group of the Commission to assist with peak flow periods in the Sydney review team. The capabilities of the newly recruited Sydney-based review advisers have been strengthened through skills transfer by re-engaging a retired former employee to work as delegate alongside them for a period of time.

Training was provided to the review team to enhance skills in administrative decision-making which focused on assessing evidence and writing reasons for decisions. These are important skills for anyone making decisions about matters that affect individual employees. Understanding the reasons for a decision, together with a fair and balanced appraisal of their employment situation, goes a long way in assisting an employee to respect a decision or outcome.

Case management strategies

Policy change

Significant improvements have been made to both the policy framework and business processes. In November 2011, I issued new binding instructions on the review function under regulation 5.34. An important addition was to provide discretion to delegates on the extent to which they need to give a review applicant an opportunity to comment for procedural fairness purposes before determining eligibility for review. This has provided clarity and improved efficiency in the assessment of eligibility.

In April 2012, I released a policy outlining how I intended to exercise the discretion provided in regulation 5.23 not to undertake a review. In particular, this policy clarified the circumstances in which my office will and will not review matters not capable of resolution that have already been extensively reviewed in the agency concerned. A summary of the policy is included in Box M1. An example of the circumstances in which my office may decline to review a matter further is given in Box M2.

Case management

As part of the strategy to expedite reviews and reduce the number of cases awaiting finalisation from the previous year, I triaged the pool of un-finalised cases, using 1 October 2011 as a point of delineation. The triage arrangements established three main streams. Within each of these streams cases were progressed, wherever possible, in order of their lodgment.

The first stream and first priority was outstanding Code of Conduct cases (regulation 5.24 cases) lodged before October 2011. I considered such cases a priority because the determination of a breach of the Code of Conduct, and the imposition of a sanction, has a material and detrimental impact on the individual employee. The second stream was non-Code of Conduct cases lodged before October 2011. The third stream was new cases. A small amount of staff resources was allocated to new cases to deal with those that were straightforward and/or time contingent.

Box M1: Merit Protection Commissioner’s policy regarding regulation 5.23—discretion

Exercise of discretion with review of action cases

Clause (g) of regulation 5.23(3) of the Public Service Regulations 1999 sets out a general power to decide that a review application is not, or ceases to be, reviewable on the basis that a review cannot be justified in all the circumstances. This is a broad discretion and may be exercised at the beginning of the review process or at any stage during the review. It allows the decision-maker to take into account all relevant issues in deciding whether to investigate a matter.

Generally if the Merit Protection Commissioner is considering exercising this discretion, the review applicant will be given the opportunity to comment before the decision is made. The types of situations in which this discretion may be used are summarised below.

No outcome to be achieved

A review application may be refused where, in the Merit Protection Commissioner’s view, a review, or further review of a matter, would be unable to deliver an outcome that would assist in resolving the review applicant’s concerns.

Outcome has already been achieved

A related circumstance is where the review applicant has already been granted an outcome by their agency that effectively resolves their concerns and no additional substantive recommendations are likely to result from further review.

Review applicant is not assisting with their case

Further review may not be warranted if a review applicant engages in a pattern of behaviour which undermines the capacity of the Merit Protection Commissioner to complete the review within a reasonable timeframe. This includes not presenting a case, failing to respond to requests or not acting in good faith.

The resources required to review the matter cannot be justified

A review may not be justified if the resources needed to complete the review are great and where the best outcome that could be provided to the review applicant is negligible.

The inherent seriousness of the issues raised in the review application

A review may not be justified where a review applicant is pursuing review of a minor incident in the workplace which has had a negligible impact on the review applicant’s employment situation, when taking a reasonable view of the circumstances.

Matter is or has been subject to promotion review

A review of the process followed to reach a promotion decision may not be justified where the selection process has resulted in an application for promotion review that is being or has been considered by a Promotion Review Committee (PRC). Because a PRC makes a fresh decision, it effectively corrects any procedural defects in the original promotion decision.

Reviews of decisions not to investigate an APS employee for misconduct

A review may not be justified where the review applicant’s complaints about an APS employee have been investigated by the agency, a decision has been made not to investigate the employee for misconduct and that decision appears from the available evidence to be the appropriate decision.

(The full policy is available on the Commission’s website at www.apsc.gov.au.)

Box M2: Notable issues and trends arising from the case work—case study

Review not justified in the circumstances

Case study 1

An employee sought review of a range of decisions including the allocation of work and removal of access to home-based work. The employee also alleged that his manager had bullied and harassed him.

This matter had been subject to a harassment investigation by the agency and a primary review of actions. As part of these processes, evidence was gathered, including speaking with witnesses. The employee was dissatisfied with the outcome as he considered that the investigations were not thorough enough. The employee also sought a finding that his manager had engaged in bullying and harassment and a recommendation that the manager be investigated for a suspected breach of the Code of Conduct.

The Merit Protection Commissioner declined to review the matter further under regulation 5.23(3)(g). This regulation provides that an action is not, or ceases to be, reviewable if review, or further review, of the action is not otherwise justified in all the circumstances.

The Merit Protection Commissioner was of the view that the employee’s concerns had been thoroughly investigated by the agency and there were no further lines of inquiry that could profitably be pursued that would resolve the issues raised by the employee. In addition, the prima facie evidence suggested that the manager had engaged in reasonable management action rather than bullying and harassment and, for that reason, the outcome the employee was seeking (to have his manager investigated for suspected misconduct) was unlikely to be achieved.

Communication

I instigated a communication strategy to ensure that agencies and review applicants were aware of the delays and to manage their expectations. Agencies with existing cases were asked to advise me of any exceptional circumstances to be taken into account when considering the allocation of cases, although none took advantage of this opportunity. I also wrote to applicants advising them of the status of their review applications.

Regular meetings have been scheduled between the delegates and reviewers to provide guidance and feedback and share experiences with case work. To ensure consistency of approach and greater efficiency, checklists and templates were developed to assist reviewers. I, my delegates and the Group Manager, Ethics, have also made regular visits to the review team in the Sydney regional office to assist communication and understanding of issues and procedures and to support the staff more generally in the region.

I have also instigated weekly meetings with delegates and the Group Manager, Ethics, to discuss case management, monitor and report on progress and identify potential problems, as well as develop strategies to improve handling of cases and provide feedback to agencies.

I was pleased that my reflection on merit in recruitment and decision-making ‘Merit and its merits: Are we confusing the baby with the bathwater?’ was published in the Australian Journal of Public Administration in September 2011 and was received favourably.

Data management

My review and fee-for-service functions are supported by a management information system database. In 2010–11, my staff identified a small design problem in the system which has affected the accuracy of data sets provided in my previous annual reports. This problem only became evident when there were a number of review cases that were carried over to the 2011–12 financial year. A significant system upgrade was completed in March 2012 to ensure accurate reporting. The errors in previous years were predominantly in the number of carryover cases and as such have not affected significantly the accuracy of data analysis in previous reports on the outcome of my statutory functions.

Promotion review and fee-for-service work

While the review of actions function was my main focus, I also continued my emphasis on streamlining the process and procedures for conducting promotion reviews.

Last year I indicated that following a privacy impact assessment, I was proposing to change the existing practice concerning the disclosure of statements provided by the parties to the review. Such statements are now provided to all parties to the review as a practical response to concerns about procedural fairness and efficiency.

I implemented the policy in November 2011 following consultation with the Privacy Commissioner and the Community and Public Sector Union. I considered the broader disclosure of information for the purposes of undertaking a fair promotion review was consistent with the provisions of the Privacy Act 1988. The change has been successfully implemented and parties to the promotion review are advised of the policy. To date no privacy concerns have been raised by parties to promotion reviews and the change has had a positive effect on the timeliness and efficiency of the administration of the function.

This year I have continued to place a high priority on ensuring that the services I offer agencies on a fee-for-service basis are of high quality. The major activity in this area is the provision of Independent Selection Advisory Committees (ISACs). ISACs are a cost-effective and efficient staff selection mechanism to obtain quality people for roles and, at the same time, provide the highest level of assurance about the application of the merit principle in recruitment. There is no right of review of a promotion decision made following the recommendation of an ISAC.

I have built on the work done in 2010–11 to improve the administration and promotion of ISACs. In May 2012, I initiated an internal examination of the ISAC function and guidelines and expect a report in August 2012.

Interaction with agencies

An important part of my role is working with agencies to improve decision-making. The feedback from reviews assists agencies with internal examination of their employment decision-making and review processes. Lessons learned from individual cases, or from analysis of agency trends, can help identify broader issues about workplace relationships, agency capabilities or employees and managers’ understanding of accountability requirements.

The quality of decisions and recordkeeping practices in agencies also influences the demand for and productivity of my office. Poorly articulated reasons, perfunctory explanations of decisions and records that are incomplete or not well-ordered lead to a greater review caseload than is necessary and create difficulties for my office in finalising cases in a timely manner.

While I have continued to meet with agencies to provide feedback, this has not been at the same level as in previous years because of my focus on the performance of the review function. I have instituted or retained regular meetings with selected larger agencies and will be looking to extend these in the coming year. Where I have not met agency representatives in person, I have maintained contact on an informal basis. This year I utilised ‘courtesy calls’ to explain key decisions where I am recommending variation or setting aside of decisions prior to correspondence being sent. This provides context and helps agencies understand the decision-making process and provides an opportunity to discuss issues or seek clarification.

In 2012, I released a printed version of the guide, Not just about process: The review of actions scheme: A human resources practitioner’s guide to responding to and managing employee complaints and disputes. The guide is aimed at assisting agencies to implement best practice in handling applications for review of employment decisions. The guide also suggests strategies for managing complaints and disputes in the workplace and options to de-escalate an issue to minimise the need for review and support positive and appropriate relationships in the workplace (see Box M3).

The feedback obtained to date has been extremely positive and has centred on the practicality of the advice—one agency commented that it assisted the reviewer to tease out some of the issues and handle the case in a more constructive way and help the individual become reintegrated into the agency. I have also used this publication in presentations and have found it particularly useful in promoting the concept of the human capital framework, as well as illustrating the importance of planning and sound review practices.

Box M3: Not just about process: the review of actions scheme

Better practice advice

The Merit Protection Commissioner is constantly seeking ways to improve the support provided to agencies to maintain high standards of decision-making and people management practices. For this reason, a better practice guide was published to assist agencies and their human resource practitioners in managing employment disputes and making review decisions.

There are two particular themes in the guide that are relevant to the case studies included in this report and are areas where the lessons in the guide may assist in promoting employment decision-making in accordance with the APS Values.

The first theme is the way that employee complaints and disputes are managed. The guide suggests that human resources practitioners develop practical strategies for the management of individual employee disputes in their agencies. These include human resource managers:

  • facilitating the access of managers to professional expertise to assist them in managing workplace conflict and obtaining an informed diagnosis of the underlying cause of the workplace conflict or dispute
  • assisting managers to choose the most appropriate strategy to resolve workplace conflict or a dispute, including alternative dispute resolution (where appropriate) or statutory processes such as the review of actions scheme or whistleblower protection.

The second theme is the importance of evidence-based decision-making when agencies are conducting an investigation or inquiry into an employment matter. The guide details the key steps in a fact-finding inquiry, including a discussion of issues such as procedural fairness and the importance of providing reasons for decisions. While the guide does not cover decision-making arising from investigations of suspected misconduct, much of the discussion on conducting a fact-finding inquiry is relevant to Code of Conduct inquiries.

Amendments to legislation

In 2011–12, amendments to the Public Service Act 1999 (PS Act) to implement recommendations in the report Ahead of the game: Blueprint for the reform of Australian Government administration (the Blueprint) were introduced to Parliament. These reforms aim to support the APS workforce and leadership and embed new practices and behaviour in the culture of the APS.

The Blueprint also proposed that the Commission consult broadly on a revised set of APS Values, including with employees and stakeholders from the government, the community, the private sector and relevant unions. Given my role I have been involved in the legislative reform process, including the legislative change relating to my functions and wider involvement, as appropriate.

The Public Service Bill introduced into Parliament in 2012 affects the role of the Merit Protection Commissioner in three ways. The Bill amends section 33 of the PS Act to expand the definition of a reviewable APS action to include action taken by the Public Service Commissioner with respect to his inquiry powers into suspected breaches of the Code of Conduct by APS employees. The Bill inserts a new section (50A) into the Act that would allow the Merit Protection Commissioner to inquire into and determine whether an APS employee has breached the Code of Conduct at the request of an agency head and with the agreement of the APS employee. In these circumstances, the employee would have not have a right of review. The remaining change is a technical amendment to enable the Merit Protection Commissioner to conduct a review without nominating a person or committee to do so.

These proposed amendments progress work previously undertaken by the Commission to better align the practical operation of the legislation with its original intent. My office had previously reviewed the subordinate legislation, focusing on the changes that could be achieved within the existing framework, while maintaining transparency, quality and trust in the processes.

This resulted in a number of the areas of proposed amendment to the Public Service Regulations and a decision was made to progress these along with the regulatory amendments arising from the PS Act amendments. The changes will be subject to government approval. This builds upon the previous changes that I instituted to the Regulations that came into effect on 2 August 2010.

The other significant legislative change affecting the review function is the proposed move of the principle that merit underpins employment decision in the APS (the practical application of which is most evident in recruitment and selection practices), from the APS Values to the new Employment Principles. It is intended that merit will remain a fundamental principle of APS employment as agency heads will be required to promote the Employment Principles in the same way as the APS Values.

Ethics agenda

I have continued my involvement with the Commission’s Ethics Advisory Group established to enable the Commission to draw upon agency experience and perspectives on ethics policies and services. In 2011–12, I chaired two meetings of the Ethics Advisory Group that considered the implementation of the revised APS Values included in the PS Act amendments. The emerging issue of the use of online forums to identify and vilify APS employees was also discussed.

I also chaired three meetings of the Ethics Contact Officer Network. This forum debated issues such as managing persistent complainants, diversity and APS Values, and experiences with social media. Keynote speakers reflected a wide-range of experience covering academic specialists in clinical psychology and law, and subject-matter experts within the APS, the Australian Government Solicitor and the Australian Federal Police. An APS employee blogger also provided the ‘hands on’ view of social media. The continued involvement of senior managers, including interstate managers who schedule their Canberra visits around the Ethics Contact Officer Network meeting, is extremely encouraging and reinforces the view that this forum is operating effectively and targeting the real needs of agencies.

Not just about process book cover

Not just about process: the review of actions scheme. A human resource practitioner’s guide to responding to and managing employee complaints and disputes.

Promoting leadership and ethical behaviour

I use the insight I gain from performing my statutory role, and as a member of the Commission’s Executive, to assist APS agencies and their employees to understand their respective responsibilities within the APS employment framework.

During the year I continued to work closely with the Department of Defence Odyssey program on ethical leadership and conducted two lunch-time seminars covering ethical decision-making and review. I also welcomed the opportunity to address APS agencies including the Australian Taxation Office, the National Library and the Australian Radiation Protection and Nuclear Safety Agency on topics covering my role, leadership and ethics, and organisational change and leadership. A presentation on review of action issues made to the Department of Health and Ageing was filmed and used in regional offices of the department and I have received invitations from a number of regions to discuss this further.

In addition, I continued to run sessions on the APS Values and Code of Conduct, and on ‘performance and conformance’, at Senior Executive Service (SES) orientation programs delivered through the Commission. My engagement with agency-specific graduate and talent identification programs such as the Department of Immigration and Citizenship’s ‘Next Step’ initiative are also important vehicles for promoting discussion and understanding. By targeting employees at significant stages in their careers, I can discuss the respective ethical responsibilities and expectations of their roles and positively influence their personal development and effectiveness.

As part of my own development, I participated in the SES Band 2 talent development program run through the Commission’s Centre for Leadership and Learning. I was in the unique position of being a participant while also understanding the Commission’s strategic intent for the program and, therefore, could provide input from multiple perspectives.

Box M4: Notable issues and trends arising from the case work—case study

Code of Conduct sanction decision

Procedural flaws—a breach of the bias and evidence rule of procedural fairness

One of the threshold issues considered by the Merit Protection Commissioner is whether an application for review raises issues of procedural fairness or compliance with agency procedures, or any other concerns that might lead to a conclusion that there were serious defects in the agency decision-making process. The Merit Protection Commissioner is unable to consider the merits of a decision or make an assessment relating to breach or the sanction once a serious procedural defect has been found, regardless of how compelling or otherwise the Merit Protection Commissioner considers the case.

In such a case, the Merit Protection Commissioner is unable to ‘cure’ a serious procedural defect. The Merit Protection Commissioner will usually refer the matter back to the agency with a recommendation that the decision be set aside and remade by a different decision-maker.

It is an important element of procedural fairness that there must be evidence in the form of facts and information to support all adverse findings. Adverse decisions should not be based on a view of an employee based on their reputation, gossip and rumour.

Case study 2

An employee sought review of the finding that he had breached the Code of Conduct for behaving in a harassing manner towards colleagues at a meeting and of the sanctions imposed—a reduction in classification and a reprimand.

In this case, the sanction decision-maker had before them a report recommending a sanction that exaggerated the seriousness of the employee’s behaviour and contained numerous adverse assertions about the employee’s conduct and behaviour, unsupported by any evidence. The sanction decision-maker appeared to accept those statements by accepting the recommendations in the report without comment. In the view of the Merit Protection Commissioner, this gave rise to a reasonable apprehension of bias.

In addition, the sanction report made reference to irrelevant material (a discussion of an unrelated incident where the employee made a mistake in releasing information to a client), giving rise to a concern that irrelevant material was taken into consideration in making the sanction decision.

In this case, the Merit Protection Commissioner considered that there was a serious procedural flaw in the sanction decision and recommended that it be set aside.

Engagement with the wider community

I regularly meet colleagues to discuss policy areas where we have common interests and to share and learn about different approaches to common problems. In 2011–12, for example, I met with the Parliamentary Librarian and the Race and Disability Discrimination Commissioner.

The Merit Protection Commissioner role is an important component of the accountability and integrity framework of the APS. In this capacity I have ensured ongoing involvement with the Australian Commission for Law Enforcement Integrity and have regular meetings scheduled with the Executive Director. The sharing of information and experiences as appropriate is beneficial as it enhances the ability of the Commonwealth to address integrity concerns and potential cross-jurisdictional issues.

My role as Chair of the Commission’s Audit and Risk Management Committee and my engagement with the Independent Chairs Forum, run jointly by the Australian National Audit Office and the Department of Finance and Deregulation, also means I have greater awareness and understanding of wider governance concerns facing the APS. In October 2011, I attended the Public Sector Governance Conference run by the Department of Finance and Deregulation as part of my role in the corporate governance of the Commission. In this capacity I continued my connection with the Company Directors Program run by the Australian Institute of Company Directors (see ‘Corporate governance’).

I also maintain contact with my state and territory counterparts. While I was unable to attend this year, I was represented by my Principal Adviser and the Director, Review and Casework at the National Public Sector Appeals Conference in September 2011. This forum provides an opportunity for an exchange of views and experiences by senior public sector representatives engaged in the external review of employment-related decisions.

In June 2012, I made a joint submission with the Public Service Commissioner to the House of Representatives Standing Committee on Education and Employment inquiry into workplace bullying. The submission noted, among other things, that a key strength of the APS framework for addressing bullying and harassment is its clarity of roles and responsibilities and the breadth of avenues available to employees for reporting unacceptable behaviour.

I was also requested to appear before the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity. In December 2011, the Acting Merit Protection Commissioner made a presentation to the International Anti-Corruption Day Forum discussing trends in the APS based on data in the Commission’s State of the Service Report.

My office continued to provide significant assistance to AusAID in the development of the Australian Civilian Corps Act 2011 and its subordinate legislation. I have agreed to be one of the possible reviewers of determinations of breaches of the Australian Civilian Corps code of conduct by Corps employees. On 12 April 2012, the Director-General of AusAID and I signed a memorandum of understanding governing the provision of review services on a voluntary, fee-for-service basis. To date, I have not been asked to undertake any reviews.

As in previous years, I participated in SES selection panels as an independent member to ensure the quality of senior management recruitment. In 2011–12, I was involved in staff selections in agencies such as the Professional Services Review, the Office of the Fair Work Ombudsman and the Australian Children’s Education and Care Quality Authority.

My staff and I were also involved in the finalisation of eight freedom of information requests. Four requests involved the provision of promotion review documents, two involved seeking access to files relating to earlier cases and one related to the time taken to conclude reviews. The remaining request to produce documents relating to a secondary review was withdrawn.

Overseas involvement

During 2011–12, I continued to assist the Public Service Commissioner in supporting international reform. I have an ongoing role as the Commission’s representative in the Pacific Public Service Commissioners’ network. In October 2011, I represented the Commissioner at the Pacific Public Service Commissioners’ Conference in Tonga and addressed a session on securing and maximising gains from reforms. I also facilitated a practical workshop on human capital and workforce planning.

As part of this role, I have been involved, through the establishment of various subcommittees, in the follow-up work arising from the Pacific Public Service Commissioners’ Conference— in particular, reviewing and setting the conference’s future strategic directions, terms of reference, vision, mission and key performance indicators to reinforce regional cooperation and determination.

On behalf of the Commission, I met with delegations from Kenya and Thailand and Commission staff spoke on my behalf with delegations from China, Ghana, Indonesia and Vietnam. My office also co-hosted the visit of two senior managers with review responsibilities from the Papua New Guinea National Public Service. In addition to discussions on review within the APS, my office provided the managers with practical assistance on the development of a review manual and arranged a meeting with review managers within the Department of Defence to allow discussion of issues surrounding agency-level review. My presentations on ethical decision-making and value-based organisations have informed Commission delegations during in-country discussions in Ghana, Nigeria and Togo.

I continued to have regular contact with senior officials in the public services in New Zealand and Canada and met with a Canadian delegation seeking information on the review function. This opportunity to share information and experiences is valuable for both the APS and our international colleagues.

Outcomes for the year

In 2011–12 there was a decrease in the lodgment of review of action and promotion review cases following a significant increase in 2010–11 and a continuing decline in demand for fee-for-service activities. While the review of action function did not meet its statutory target for timeliness, the performance of the promotion review function continued to improve.

Review of action performance

Last year I outlined the reasons why, in the short term, I did not envisage a significant improvement in the timeliness of review casework and that I expected that it would take longer to meet targets. As anticipated, in 2011–12, the proportion of reviews of actions completed within 14 weeks (18%) remained significantly below the target of 70%.

The figure of 18% compares with 38% and 82% in the previous two financial years respectively. The average time taken to complete reviews was nearly 37 weeks compared to just over 23 weeks in 2010–11.

The timeliness figures were strongly influenced by the unusually high number of applications (141) carried over from 2010–11, of which 15 cases were already more than 12 months old. The age of the case when the review commenced was the key factor affecting performance in this regard, rather than delays in the handling of individual reviews. I am pleased to report that when the time taken to finalise a review was measured from the time of allocation to a review adviser—rather than when the application was received—83% of the cases were completed within the 14-week target which is comparable to the 2009–10 achievement and above the statutory target.

The time it takes to finalise cases is also influenced by the number and complexity of the applications for review and the interaction with agencies and applicants to provide the necessary information to enable a review. While my office can influence the latter, it cannot influence the former. Box M5 sets out some general guidance to agencies on how they can assist my office with reducing the amount of time it takes to collect information or obtain clarification of facts.

While the timeliness target was not met, the number of cases reviewed in 2011–12 nearly doubled (95 compared to 53 in 2010–11). This increased output was largely a result of the additional resources directed towards the function and enhanced familiarity of the review team with their role.

Box M5: Advice to agencies to avoid unnecessary delays in reviews

Practical steps for agencies to avoid unnecessary delays in review of actions cases

The target date for completion of a primary or secondary review of action is 14 weeks or 98 calendar days from the date a review case is received in the office of the Merit Protection Commissioner (this office). The target date will change depending on the number of days a review is put ‘on hold’. A review case is put ‘on hold’ when factors outside the control of this office prevent work on the case from proceeding.

In 2011–12, finalised cases were put ‘on hold’ for an average of 59 days. Agencies accounted for 37% of the ‘on hold’ days (for example, a delay in receiving documents from the agency), the review applicant accounted for 40% (for example, where a review applicant is unavailable because of leave) and this office accounted for 23% (for example, cases are put on hold when this office closes over the Christmas–New Year period).

It is in everyone’s interest for a review to be finalised as quickly as possible as this allows outstanding issues to be resolved, enabling the review applicant and managers to focus on contributing to the performance of their agency. This is consistent with the intent of the review scheme which is to encourage productive and harmonious workplaces.

Suggestions for agencies

This office requests papers from an agency where a primary review has been lodged directly with the Merit Protection Commissioner, or in the case of secondary reviews, where the agency has not provided key papers. The quality of papers provided by the agency can affect the timeliness of the review undertaken by this office.

It is in everyone’s interests for agencies to check that they have provided this office with the following:

  • a full set of papers from their file with an index of documents
  • relevant reports with all the associated attachments
  • the policy documents and agency agreement that were current at the time of the employment decision in question (where the review concerns conditions of employment and issues such as performance management)
  • the guidelines, policy documents and procedures that were current at the time of the decision in question (where the review concerns, for example, a Code of Conduct decision).

The information provided to this office should also be provided to the review applicant, and the agency should advise this office that this has happened. In circumstances where the agency considers that it is necessary to withhold information from the review applicant, the agency must notify this office that this is the case so it can determine how to proceed.

A 36% reduction in the number of new applications received during the year assisted in keeping the workload manageable and preventing a new pool of un-finalised cases. Of the 60 cases carried over to 2012–13, two-thirds are still within the target date for completion.

There were 84 fewer applications for review received in 2011–12 than in 2010–11. While applications for review of Code of Conduct decisions fell slightly (by 15%), there were significant reductions in the number of applications for secondary review (38 fewer, a 31% reduction) and primary reviews other than Code of Conduct (31 fewer, a 76% reduction). It is unclear what is driving this trend but it may represent a return to a more normal level following higher numbers of applications in the previous two financial years.

In 2011–12, 32% of review applications were not accepted. A small number of these were applications for primary review of agency decisions (other than Code of Conduct matters). These were referred to the relevant agency for review in the first instance, consistent with the intent of the scheme. However, this year a larger than usual number of applications for secondary review were not accepted (41% compared to 17% in 2010–11). More than 60% of these secondary review applications were either out of time at the date of lodgement or review was not considered justified. As advised previously, I issued a policy statement on the circumstances in which I would consider exercising my discretion not to review a matter (see Box M2, ‘Case management strategies’). It is important for agencies to fully advise applicants of their review rights and the timeframes in which they may apply.

During the year, 43 reviews lapsed or were withdrawn, compared to 31 in 2010–11. Such cases can still involve considerable work, depending on the complexity of the case and the timing of the withdrawal. The number of withdrawals this year may be influenced by the delay in finalising cases as applicants decide that, with time to reflect, the issue was not worth pursuing or it has been resolved in other ways.

In 25 cases this year, my delegates recommended that the agency’s decision be varied or set aside. This represented 30% of finalised cases, a five percentage point increase on the previous year. As in previous years, the majority of these recommendations (68%) were made in reviews of determinations of the Code of Conduct and/or the imposition of a sanction. Agencies accepted the recommendations of my delegates in 19 of these cases, four recommendations were not accepted, or only partially accepted, by agencies in 2011–12 and I am awaiting responses to the recommendations made in the remaining two cases.

I consider the non-acceptance of an independent merit-based assessment of a case to be the exception and under section 33 of the PS Act, if I am not satisfied with an agency’s response to my review recommendations, after consulting the Public Service Minister, I may provide a report to the relevant agency minister and to the Prime Minister. I have raised my specific concerns with agencies and am considering further the appropriate response to these cases.

I am particularly concerned in the rise in the number of primary and secondary review cases where the recommendation of my delegate is that part or all of a decision be set aside as agency decision-makers have failed to afford procedural fairness or to adhere to agency procedures. I consider this to be an unsatisfactory outcome for all parties involved. Some case examples have been highlighted in this report and I intend to draw upon such cases in discussions with agencies to promote better decision-making.

As noted earlier, I am conscious that I am a last avenue of merit-based review for many employment decisions in the APS. If a review applicant remains dissatisfied they have the option of judicial review on a point of law. Two applications for judicial review made in 2010–11 were still before the courts in 2011–12. I do not participate in these cases as the practice is for me to file a submitting appearance and the relevant agency conducts the litigation. One of these cases was withdrawn in July 2012.

Box M6: Notable issues and trends arising from the case work—case studies

Procedural flaws—procedural fairness

One of the threshold issues considered by the Merit Protection Commissioner is whether an application for review raises issues of procedural fairness or compliance with agency procedures, or any other concerns that might lead to a conclusion that there were serious defects in the agency decision-making process.

Procedural fairness—the hearing rule

The hearing rule of procedural fairness requires that a person whose interests could be adversely affected by a decision should be provided with sufficient information to allow them to make effective use of the right to respond and present arguments.

Case study 3

An employee sought review of the sanctions imposed on him for a breach of the Code of Conduct. After the determination had been made that the employee had breached the Code of Conduct, the employee was advised of the full range of sanctions in section 15(1) of the PS Act. The employee was given an opportunity to comment on the issue of sanction and/or to provide further details of mitigating circumstances to the attention of the sanction delegate.

The advice to the employee on sanction outlined all the available sanctions but did not indicate which sanctions were being considered in his case. There was no indication that the employee had been advised at any stage which sanctions were being considered before the sanction decision was made, or the reasons for the proposed sanctions.

In this case, the Merit Protection Commissioner took the view that there was a significant failure to afford procedural fairness in relation to the sanction decision and recommended that the sanction decision be set aside.

Case study 4

A team leader sought review of the decision to reduce their classification as a result of underperformance. The concerns about the team leader’s performance in large part concerned their capacity to manage staff effectively.

The team leader’s performance was subject to review under the agency’s managing underperformance guidelines and the reviewer recommended a reduction in classification. A copy of the review report was provided to the team leader for comment, before the delegate made a decision.

The reviewer’s report and the team leader’s response were provided to the delegate with a covering report from the human resources manager. In that report, the human resources manager raised additional concerns about the team leader’s performance, including a complaint the human resource manager had received from an employee representative about the team leader’s management of staff and the human resource manager’s own observations about the team leader’s management style. These concerns were not provided to the team leader to comment on.

The Merit Protection Commissioner found that, as a result of the human resources manager’s report, new issues and evidence were put to the delegate that were directly relevant to the matters under consideration and that were adverse to the team leader. In the view of the Merit Protection Commissioner, the failure to advise the team leader of the additions to the case against them and to afford them a reasonable opportunity to respond before reducing their classification, failed to comply with the requirements of procedural fairness. The Merit Protection Commissioner recommended that the decision to reduce the employee’s classification level be set aside as procedurally flawed.

Case study 5

An employee was found to have breached the Code of Conduct for emailing in-confidence material to their home email address to work on overnight to meet a work deadline the following day. The employee was sanctioned with a fine.

In the notice provided to the employee advising them that their conduct was under investigation, the employee was advised of the full range of sanctions that may be imposed. After a breach of the Code of Conduct had been determined, the employee was advised that a reprimand was being considered and was given an opportunity to comment on that sanction. The employee duly provided comments. However, the sanction delegate imposed a sanction of a fine, without providing any reasons for the more serious sanction.

In the view of the Merit Protection Commissioner, the earlier general advice on sanctions was overtaken by the specific advice and the failure to give the employee an opportunity to comment on the proposed sanction represented a failure to afford procedural fairness. In this case, the employee presented significant information relevant to mitigation, after the sanction decision was made, that in all likelihood would have affected the sanction decision.

The Merit Protection Commissioner recommended that the sanction decision be set aside due to a procedural error.

The information provided by the employee and the employee’s managers to the review indicated systemic issues with respect to the capacity of employees to work on confidential material at home. The Merit Protection Commissioner made the observation that the issues presented by this case would have been more appropriately dealt with through management action to address the systemic issues, rather than taking misconduct action against this particular employee.

Promotion review performance

The performance of the promotion review function has continued to improve with 95% of reviews completed within the target timeframe compared to 86% in 2010–11 and 47% in 2009–10. Six cases were on hand at 30 June 2012 and all were all tracking to be completed on time. This is a significant achievement as the administrative staff for promotion reviews also work on the review function.

In 2011–12, both the number of promotion review cases received (82) and the number of cases reviewed (60) fell by 10% and 14% respectively, compared with 2010–11. The average size of a promotion review also fell from 6 to 5.4 parties. However, the level of activity still remains higher than in 2009–10.

I do not consider that the high number of applicants reflects any deterioration in the quality of agency selection processes. It is not surprising that applications for promotion review remain high in an environment of fiscal restraint. If employees perceive that promotion opportunities are less readily available or if they have doubts about the openness, transparency and the fairness of a process, they are more likely to seek review of the promotions that are open to them.

In 2011–12, the number of promotion decisions varied fell to seven from 12 in 2010–11. This represents 2.3% of the 311 promotion decisions reviewed and is consistent with the range of 2–5% over the last few years.

Whistleblower inquiries

Despite carrying over significant whistleblower casework from the previous year, I was able to finalise all but two cases during the period. In 2011–12, I handled 17 whistleblower reports including finalising the eight cases on hand from the previous year. The two cases on hand at the end of the year were both received in 2012 and action is in train. While I investigated 10 of the finalised cases and identified three potential breaches of the Code of Conduct, I considered that in only one case was it appropriate to recommend to the agency head that they commence investigations into suspected breaches of the Code of Conduct by two employees.

Fee-for-service activities

Agency demand for my fee-for-service functions decreased in 2011–12. The number of requests for ISACs fell by 31% to 37 as the number of agencies using ISACs fell from 11 to six. While three-quarters of ISACs were convened in two agencies—the Department of Human Services and the Department of Defence—the largest recruitment exercises were in the Australian Taxation Office, which averaged over 1,000 candidates per ISAC.

As previously noted, I will continue to promote the use of ISACs as they support public confidence in the application of the merit value within the APS. In practice, they provide a streamlined merit-based selection process that is transparent and cost-effective and able to handle bulk numbers or specialised types of candidates, quickly and fairly.

Outlook for the coming year

While there have been significant improvements in performance for reasons discussed earlier in this report, it is important that performance continues to improve and that the review function meets its ongoing challenges particularly in the area of timeliness and quality. Now that the large residual caseload has been significantly reduced, the challenge will be to maintain the momentum without the support of the temporary delegates.

Even if the current levels of review applications continue and there is no loss of experienced staff, I do not anticipate that targets set for the review function will be met in 2012–13 due to the continuing impact on the statistics of cases carried over from the previous year. I do, however, anticipate a significant improvement in performance over the year. The indications for this are positive as the major problem this year was the age of the review when it was commenced and, as reported, a large number of reviews once commenced are meeting the 14-week statutory target.

It is not enough just to meet timeliness targets, the quality of the review process cannot be compromised as it is an integral part of the integrity and values framework of the APS. My assurance role in supporting the credibility of APS decision-making means the review function carries significant reputational risk for the APS. In order to ensure improved timeliness and consistent quality I intend to focus on two areas—the internal capability of the review team and further streamlining of processes including interaction with agencies.

Now that the review team in Sydney has been in place for nearly two years, they have experience and understanding of the review function and responsibilities. My delegates and I will continue to work with the review team to further develop their capabilities with particular emphasis on critical reasoning and analysis to support timely decision-making.

I will also be exploring ways to streamline further the manner in which the review work is undertaken. I envisage a combination of greater use of templates and standard letters for routine correspondence, updating and simplifying information sheets to make the process more easily understood by applicants and improving the readability and accessibility of my webpages.

The focus on finalising reviews this year has meant that I have not had the opportunity to meet regularly with senior agency managers to discuss trends and provide practical feedback on issues identified through the review work and any general observations on agency procedures and practices. In 2012–13, I intend to work more closely with the agencies with the aim of improving the quality of agency reviews and decision-making and encouraging agencies to implement the lessons learned from review more quickly. I also expect to obtain feedback on the performance of the review function and how I can ensure more effective communication.

Feedback from agencies in the past is that such meetings are valuable as they improve understanding of the reasoning behind decisions. They also assist in identifying problems and recurring issues that may not have been apparent to the agency. Early attention to such matters prevents such problems from becoming intractable, which can lead to significant effects on productivity and disruption in the workplace.

As an adjunct to the meetings, I will be seeking to improve decision-making by assisting agencies in assuring the skills of the persons they engage to conduct workplace investigations, in particular investigations of suspected misconduct. This work includes the quality assurance of courses in conducting Code of Conduct investigations run by external providers. In 2011–12 work on a guide for agencies on selecting investigators was placed on hold because of competing demands on the resources available to my office. I now expect to recommence work on the guide and I also intend to post further case studies on the website to alert agencies to issues that need to be considered in review work.

If enacted, proposed amendments to the PS Act will result in some changes to the practical application of my statutory functions. There will be a significant body of work in explaining the changes and ensuring that my instructions and guidance material are updated to reflect the legislative changes to employment-related reviews, promotion reviews and ISACs.

The demand for promotion review and fee-for-service activities is largely generated by agency recruitment activity. I will work to ensure the continued provision of quality and timely promotion reviews and to promote the benefits of ISACs to agencies, which I believe will be further enhanced by the proposed changes to the regulatory framework. Subject to resource constraints, I will consider new requests from non-APS organisations for review and recruitment services.

I will also be encouraging agencies to nominate suitably qualified employees to participate in promotion reviews and ISACs as independent members and to provide the necessary training. Such participation is beneficial to both the APS and agencies as the skills utilised and knowledge obtained can be easily applied to improve agency recruitment procedures.

At the same time as focusing on my statutory functions I will continue to support the Public Service Commissioner with his statutory responsibilities.

A significant external focus will be working closely with the Public Service Commissioner in implementing the proposed new APS Values should the PS Act amendments be enacted by Parliament. This will be a substantial body of work directly related to my statutory role. One of the main methods of communicating information on the new values will be through the Ethics Advisory Group and the Ethics Contact Officer Network. I have found, in my role as chair, that these forums are valuable two-way conduits for conveying information and discussing the impact of change and for understanding the practical issues faced by agencies.

I will also use opportunities to speak at conferences and to agency forums to ensure that ethical and accountability issues are considered and understood, including raising awareness of the review provisions.

Review of performance

Contribution to outcomes 2011–12

The Commission is included in the Department of the Prime Minister and Cabinet’s Portfolio Budget Statements. The Public Service Commissioner, as head of the Commission, is responsible for the Commission’s financial and human resources (which includes the financial and human resources provided to the Merit Protection Commissioner) and for assessing the level of the Commission’s achievement against its outcome and program structure.

The performance indicators and targets relevant to the Merit Protection Commissioner’s functions are provided under ‘Program 1.1—component 1.1.1: APS people and organisational performance’, in Part 2 of the Public Service Commissioner’s annual report.

The information on activity and performance provided below in tables M1 to M9 refers to the Merit Protection Commissioner’s statutory functions.

The tables provide a comparison of performance over the years 2009–10 to 2011–12. The data for the previous financial years varies slightly from that published in the respective annual report because of an error identified in the Merit Protection Commissioner’s management information system. Data has been corrected following an upgrade of that system. The errors have not affected the reliability of the outcome data of the Merit Protection Commissioner’s statutory functions reported in previous annual reports.

Review of employment actions

Section 33 of the PS Act and Part 5 of the Regulations provide a scheme for the review of a broad range of employment actions affecting individual APS employees. Certain employment decisions, most notably termination of employment, are excluded from the review framework by the legislation. The Merit Protection Commissioner is also able to review complaints by former APS employees about the final entitlements they received upon separation from the APS.

The three main categories of reviews conducted by the Merit Protection Commissioner are:

  • reviews of breaches of the APS Code of Conduct
  • reviews of other employment actions
  • reviews of promotion decisions.

Table M1 provides information on the number of applications for review (other than promotion review) received and reviews completed in 2011–12. Table M2 provides information on the timeliness with which these functions were performed. Both tables compare results for 2011–12 with 2010–11 and 2009–10.

The tables refer to ‘primary’ and ‘secondary’ reviews. Primary reviews are reviews conducted by the Merit Protection Commissioner without first being reviewed by the agency head. The majority of primary reviews involve reviews of decisions that an APS employee has breached the Code of Conduct, and/or sanctions imposed as a result of a breach of the Code.

Secondary reviews are conducted by the Merit Protection Commissioner in circumstances where:

  • the employee is dissatisfied with the review conducted by the agency head
  • the agency head has told the employee that the matter is not reviewable, but the Merit Protection Commissioner considers that it is.

In 2011–12, the Merit Protection Commissioner received 151 applications for review and carried over 141 cases from the previous year. This represents a 36% decrease in applications from 2010–11. However, the work on hand remained steady given the number of cases carried over from the previous year.

A total of 232 cases were finalised in 2011–12, of which 95 were reviewed (that is, they were not ruled ineligible or withdrawn before the review was finalised). Of the 141 cases carried over from 2010–11, 135 were finalised in 2011–12.

In 2011–12, 32% of applications received, or carried over from 2010–11, were assessed as non-reviewable. This compares to 23% in 2010–11 and 36% in 2009–10. The average number of applications assessed to be non-reviewable for 2010–11 and 2011–12 is 81. The two year average provides a better indication as a proportion of the applications assessed as not reviewable in 2011–12 were received in 2010–11. More than 60% of the non-reviewable applications received in 2011–12 were either out of time at the date of lodgment or review was not justified in all the circumstances.

Table M1: Review of employment actions workload for 2011–12 by type of review, compared with total reviews in 2009–10 and 2010–11
Cases Primary reviews—Code of Conduct Primary reviews—other Secondary reviews Complaints by former employees Total Total
2011–12 2009–10 2010–11 2011–12
On hand at start of year 46 2 93 0 44 59 141
Received during the period 56 10 84 0 198 234 151
Total cases 102 12 177 0 242 293 292
Reviewed 44 1 50 0 76 53 95
Not accepted 15 6 73 0 87 68 94
Lapsed or withdrawn 14 1 28 0 20 31 43
Total finalised during period 73 8 151 0 183 152 232
On hand at end of year 29 4 26 0 59 141 60

There was a significant carryover of cases (141) into 2011–12. During the year the office reduced the number of cases on hand and carried over 60 cases to 2012–13. The number of cases carried over is now at 2009–10 levels and this will reduce further if the number of new applications remains below 2010–11 levels. Of these carried-over cases, 41 (68%) were within the target date on carry over compared to only 30% of cases in 2010–11.

The target timeframe for completion of primary and secondary reviews is 14 weeks from receipt of application. This office aims for timely review without any loss in the quality of the review. Timely resolution of cases is beneficial to both the employee and employer as it improves the prospect of successfully reintegrating the employee into the workplace and minimises the impact on the individual, colleagues and the organisation.

Table M2 compares timeliness figures for 2011–12 with those for 2009–10 and 2010–11. There was a fall in the percentage of cases completed within target times in 2011–12 (18%) compared to in 2010–11 (39.6%). The average time for Code of Conduct and secondary reviews rose correspondingly in 2011–12, with the overall average time taken to finalise a case being just under 37 weeks compared to 23 weeks in 2010–11.

Enhanced case management and streamlining of processes and procedures (see ‘Case management strategies’, page 99), together with the additional resources provided for the function and the fall in the number of cases received, has meant that the time taken to complete reviews has been minimised. Fifty-five per cent of cases received and reviewed in 2011–12 were in time. Once the ‘out of time cases’ were allocated1 to a review adviser to commence a review according to the triage arrangement (see page 99), 83% were completed within the 14-week target period.

Table M2: Timeliness in handling reviews, 2011–12 compared to 2009–10 and 2010–11
Review type 2009–10 2010–11 2011–12
Average time to complete reviews (weeks) Completed within target timeframes (%) Average time to complete reviews (weeks) Completed within target timeframes (%) Average time to complete reviews (weeks) Completed within target time frames (%)
* Only one primary review other than a Code of Conduct review was finalised in 2010–11 and 2011–12.
Primary reviews—Code of Conduct 12.30 75 20.79 46 32.8 27
Primary reviews—other 7.91 100 47.29* 0 25.7* 0
Secondary reviews 12.70 80 24.41 35 40.4 10
Former employees 0 0 0 0 0 0
Total 11.7 82 23 39.6 36.8 18

Table M3 provides a breakdown of the number of reviews by agency. As has been the case for the last few years, the agencies with the highest number of applications for review were the large employers, namely the Department of Human Services,2 the Australian Taxation Office and the Department of Defence. These three agencies accounted for two-thirds of the completed reviews, down from 80% in 2010–11.

Table M3: Reviews completed, by agency, 2011–12
Agency Primary reviews—Code of Conduct Primary reviews—other Secondary reviews Complaints by former employees Total
Department of Human Services 9 0 23 0 32
Australian Taxation Office 13 0 12 0 25
Department of Defence (including Defence Materiel Organisation) 3 0 3 0 6
Australian Customs and Border Protection Service 2 0 3 0 5
Department of Immigration and Citizenship 4 0 1 0 5
Department of Health and Ageing 2 0 1 0 3
Department of Families, Housing, Community Services and Indigenous Affairs 0 0 2 0 2
Bureau of Meteorology 2 0 0 0 2
Department of Sustainability, Environment, Water, Population and Communities 2 0 0 0 2
Fair Work Ombudsman 2 0 0 0 2
Eleven other agencies (one review each) 5 1 5 0 11
Total 44 1 50 0 95

The types of employment matters for which review is sought are shown in Figure M1.

Determinations of breaches of the Code of Conduct accounted for 44 of the reviewed cases, compared to only 26 in 2010–11. However, Code of Conduct cases fell as a proportion of the number of cases reviewed (46% in 2011–12 compared with 49% in 2010–11).

There were increases in the proportion of performance management cases reviewed (14% in 2011–12 compared with 11% in 2010–11) and disputes around duties (4% in 2011–12 compared with 3% in 2010–11). There were small decreases in cases relating to the workplace environment (5% in 2011–12 compared with 9% in 2010–11), in harassment cases (7% in 2011–12 compared with 8% in 2010–11) and in conditions of employment cases (16% in 2011–12 compared with 17% in 2010–11).

Breaches of the Code of Conduct

There were 56 applications for review of a decision that an employee had breached the Code of Conduct and/or of the sanction imposed for a breach and 46 cases on hand at the start of the year. Forty-four cases were reviewed during the year.

Misconduct determinations usually involve several findings of breach—for example, sending an offensive email may be both inappropriate use of the information technology (IT) system and a failure to act with respect and courtesy.

Inappropriate use of IT systems, including internet and email, continues to be the predominant action reviewed, with 17 cases having some degree of IT involvement. Ten of these cases concerned the inappropriate use of email systems, including the inappropriate distribution and storage of email messages or images, four involved forwarding confidential material outside the agency and three involved inappropriate access of agency records.

Twelve cases were primarily concerned with behaviour towards colleagues, including allegations of harassment and lack of respect in the workplace. Eleven cases concerned employees’ failure to record their attendance, leave or travel accurately.

Other behaviours that were investigated and reviewed include a failure to follow directions, a conflict of interest created by receiving gifts and dishonesty in the workplace or in investigations.

The Merit Protection Commissioner confirmed the agency’s decision in 25 of the 44 Code of Conduct decisions reviewed. In nine of the remaining cases the Merit Protection Commissioner recommended a variation to either the agency’s determination of a breach or the sanction imposed. Of the remaining 10 cases the Merit Protection Commissioner recommended that five cases be set aside as a result of procedural flaws and in a further five cases a breach and/or the sanction be set aside also for procedural flaws. Case studies illustrating procedural flaws identified in the review process are contained in boxes within this report.

Chart showing that most cases relate to Code of Conduct, employment conditions or performance management issues

Figure M1: Cases reviewed by subject, 2011–12

Box M7: Notable isssues and trends arising from the case work—case studies

Serious defects in the process—Code of Conduct cases

Failure to comply with the agency’s procedures made under section 15(3) of the PS Act

One of the threshold issues considered by the Merit Protection Commissioner is whether an application for review raises issues of procedural fairness or compliance with agency procedures, or any other concerns that might lead to a conclusion that there were serious defects in the agency decision-making process.

Case study 6

An employee sought review of the finding that they breached the Code of Conduct by asking a colleague to look up personal information on a client database for a nonwork-related purpose, and of the sanctions imposed on the employee for the breach.

In this case the Merit Protection Commissioner found that the agency failed to comply with its procedures for investigating suspected misconduct, made under section 15(3) of the PS Act. In particular, the agency failed to provide the employee with an opportunity to be heard orally before a decision was made.

This procedural defect arose because a discussion between the employee and a manager (which was taken by the agency as an opportunity to make an oral submission) was unclear in its purpose, no record was kept of the discussion and there was no evidence that the employee’s statements during the discussion were brought to the attention of the breach decision-maker. The Merit Protection Commissioner considered that this was a substantial failure to comply with the agency’s procedures for determining suspected misconduct and recommended that the decision be set aside.

Case study 7

An employee was found to have breached the Code of Conduct for their behaviour towards a colleague and was reduced in classification as a result.

The agency’s procedures required that an employee suspected of breaching the Code of Conduct, who makes a statement in writing, must be given an opportunity to make an oral statement to the breach decision-maker.

In this case, the person originally authorised to determine a breach had a discussion with the employee after receiving their written statement. This person kept no notes of the discussion. The person subsequently moved to other duties and another person was authorised to determine the breach. The second decision-maker determined a breach without giving the employee the opportunity to make an oral statement and without any knowledge of the nature of the statement made by the employee to the first decision-maker. The Merit Protection Commissioner considered that this was a substantial failure to comply with the agency’s procedures for determining suspected misconduct and recommended that the decision be set aside.

Case study 8

An employee was found to have breached the Code of Conduct when a member of their family incurred a speeding fine while using an agency motor vehicle in the employee’s custody, without authorisation.

The employee was spoken to by a manager about the use of the motor vehicle and explained the circumstances in which the speeding fine had been incurred. This manager subsequently advised another manager of the outcome of their communication with the employee, stating that they had formed the view that the employee had breached the Code of Conduct and recommending the sanction of a reprimand. The second manager wrote to the employee advising them that the manager had determined that they had breached the Code of Conduct.

The Merit Protection Commissioner found that the decision-making process had not been in compliance with the agency’s procedures for investigating suspected misconduct as the employee had not been informed of the details of the suspected breach and given a reasonable opportunity to be heard before a decision that the employee had breached the Code of Conduct was made. In particular, there was no indication from the first manager’s communication with the employee that the employee had been advised that they were under investigation for suspected misconduct.

Investigation of complaints by former employees

Regulation 7.2 provides that the Merit Protection Commissioner may investigate a complaint by a former APS employee that relates to the employee’s final entitlements on separation from the APS. No requests were received during the reporting period.

Review of promotion decisions

The Merit Protection Commissioner conducts merit review of promotion decisions for roles in APS 1 to 6 classification groups. These reviews are conducted by a three-member Promotion Review Committee (PRC) comprising a nominee from the relevant agency, a convenor and a third member nominated by the Merit Protection Commissioner.

The only ground for a review of a promotion decision is merit. The committee has the power to confirm the promotion decision made by the agency or substitute a different decision.

Details of the promotion review caseload are in Table M4. In this table, ‘case’ means an application by one or more APS employees for review of a promotion decision (or decisions) arising from a discrete agency selection exercise.

The number of applications for promotion reviews (82) decreased by 10% compared to 2010–11. The number of PRCs convened to consider applications (60) remains 76% higher than 2009–10 but 14% less than the 70 conducted in 2010–11.

Target times for promotion reviews are 12 weeks for cases with more than 10 parties and eight weeks for all others. The percentage of review cases completed within the target times increased to 95% compared to 86% in 2010–11 and 47% in 2009–10. Two of the three cases were outside the target time by five days or less. The six cases on hand at 30 June 2012 were within the target times of eight or 12 weeks.

Table M4: Promotion review caseload 2011–12 compared to 2009–10 and 2010–11
Promotion review cases 2009–10 2010–11 2011–12
Note: A target of 12 weeks for reviews with more than 10 applicants was introduced in 2010–11.
On hand at start of year 1 12 2
Received during the period 59 91 82
Total caseload 60 103 84
Reviewed 34 70 60
Not accepted 1 0 1
Lapsed or withdrawn 13 31 17
Total finalised during period 48 101 78
On hand at end of year 12 2 6
Target completion time (weeks) 8 8 or 12 8 or 12
Completed within target time (number) 16 60 57
Completed within target time (percentage) 47 86 95

Table M5 provides information on the agencies whose promotions attracted review applications as well as a breakdown of the number of ‘active’ and ‘protective’ applications. Unsuccessful candidates for a promotion may lodge an ‘active’ application seeking review of a promotion decision. Employees who have been promoted and whose promotion may be subject to review may lodge a ‘protective’ application against the promotion of other successful candidates. This application will only be actively considered by a PRC if a review is lodged and successful against the applicant’s promotion.

During the year, applications for reviews were received in relation to promotion decisions made in 15 agencies. The six agencies with two or more applications for review are identified. Nine other agencies with one application for review are not separately identified.

PRCs varied seven (2.3%) of the 311 promotions reviewed. This is similar to 2010–11 (2.5% of promotion decisions varied). In recent years the proportion of decisions varied has fluctuated between 2% and 5%. The small proportion of varied decisions indicates that agency recruitment decision-making at these classifications is effective.

In 2011–12, the size of cases (measured by the applicant field and the number of promotions involved) decreased by 23% and 35% respectively.

This year the largest number of promotion review applications considered by a single PRC was 39 in the Department of Immigration and Citizenship. Six other PRCs conducted promotion reviews with 10 or more applications. This compares to 11 in 2010–11. Seventy-eight per cent of promotion review processes had five or fewer applications (67% in 2010–11). The average number of applications for each finalised promotion review process was 5.4 compared with 6.0 in 2010–11 and the average number of promotions considered by each PRC fell from 6.9 to 5.2.

The Australian Taxation Office accounted for 28% of the finalised promotion review processes (17), with the number of applicants in each case ranging from one to 13.

Table M5: Review of promotion decisions, by agency, 2011–12
Agency Promotion reviews finalised Total applications received ‘Active’ applications received ‘Protective’ applications received Promotion decisions considered Promotion decisions varied
Note: An APS employee may make an application for review of one or more promotion decisions. Not all applications are considered by a Promotion Review Committee. Some applications are withdrawn, held to be invalid or, in the case of ‘protective’ applications, do not proceed to review.
Australian Taxation Office 17 72 21 51 69 1
Department of Human Services 15 123 30 93 105 1
Australian Customs and Border Protection Service 8 14 9 5 11 0
Department of Defence (including Defence Materiel Organisation) 6 6 6 0 10 1
Department of Immigration and Citizenship 3 85 17 68 95 4
Australian Bureau of Statistics 2 2 2 0 4 0
Nine other agencies (each with one review) 9 22 11 11 17 0
Total 60 324 96 228 311 7

Box M8: Notable issues and trends arising from the case work—case study

Revisiting the determination that an employee has breached the Code of Conduct

One of the threshold issues considered by the Merit Protection Commissioner is whether an application for review raises issues of procedural fairness or compliance with agency procedures, or any other concerns that might lead to a conclusion that there were serious defects in the agency decision-making process.

Case study 9

An employee sought a review of the finding that they had breached the Code of Conduct in relation to allegations of bullying and harassing behaviour directed towards a colleague.

An external consultant was engaged and authorised to determine whether the employee had breached the Code. The consultant determined that the employee had breached sections 13(3) and 13(11) of the Code of Conduct in relation to a range of behaviours.

The employee was invited to make a submission to the sanction decision-maker on the issue of sanction. In doing so, the employee raised a number of concerns about the breach decision and asked that it be set aside.

The sanction decision-maker wrote to the employee advising that he had reconsidered the details of the investigation report and breach decision and decided to amend the findings. The sanction decision-maker advised that he had found two of the three behaviours found to be in breach of the Code of Conduct were not a breach and the employee had only breached section 13(3). The decision-maker advised the employee on that basis he had decided not to impose a sanction.

The Merit Protection Commissioner advised the agency that the sanction decision-maker was not at liberty to re-make a valid determination regarding a breach simply because they took a different view of particular matters which informed the original decision.

The only circumstances in which an agency decision-maker may set aside a decision of a breach of the Code of Conduct, or the sanction imposed, are where:

  • the Merit Protection Commissioner makes a recommendation to that effect, or
  • the agency identifies legal error in the original decision such that the decision can be taken to be a ‘nullity’ i.e. not lawfully made.

The Australian Government Solicitor has a legal briefing on its website entitled Don’t think twice—Can administrative decision makers change their mind? (legal briefing no. 67) which provides advice on the capacity of administrative decision-makers to vary or set aside decisions that are subject to legal error.

Independent Selection Advisory Committees

Independent Selection Advisory Committees (ISACs) are established by the Merit Protection Commissioner at an agency head’s request, usually on a fee-for-service basis. ISACs are independent three-member committees that undertake a staff selection exercise on behalf of an agency and make recommendations to the agency about the relative suitability of candidates.

An ISAC consists of a convenor nominated by the Merit Protection Commissioner and two members, one nominated by the Merit Protection Commissioner and one nominated by the agency head. ISACs work within agency recruitment policies and have the flexibility to accommodate a range of selection assessment techniques.

ISACs may be used for job vacancies in APS 1 to 6 classification groups. An ISAC’s recommendation is not binding on an agency—however, if it is accepted, any resulting promotion decisions are not subject to promotion review.

Agencies may choose to use ISACs for a variety of reasons. The most common ones are to provide assurance about the fairness and integrity of their recruitment decisions and to avoid delays in placing staff resulting from review of promotion decisions. An order of merit established by an ISAC can also be used to fill similar employment opportunities for 12 months from the date when the original employment opportunity was notified in the APS Employment Gazette.

Table M6 provides information on ISAC activity for the period 2009–10 to 2011–12. The decline in the number of requests for ISACs has continued in 2011–12, falling by over 31% since 2010–11.

Table M6: Independent Selection Advisory Committees 2011–12 compared to 2009–10 and 2010–11
2009–10 2010–11 2011–12
On hand at start of year 6 17 11
Received during the period 57 54 37
Completed 45 51 37
Lapsed/withdrawn 1 9 5
Total finalised during the period 46 60 42
On hand at end of year 17 11 6

Table M7 provides information on the number of ISACs established, by agency, and the number of candidates considered and recommendations made.

On average the ISACs were smaller in 2011–12 compared with 2010–11. The average size and number of candidates recommended for positions fell overall compared to the available data in 2010–11.3 In 2011–12, the average number of applications received per ISAC was 154, with an average of 31 candidates recommended. This compares to an average of 433 applications with 72 recommendations in 2010–11. In 2011–12, two of the ISACs conducted in the Australian Taxation Office represented 43% of all applications and one-third of the number of candidates recommended. The ISACs ranged in size from 2 to 1,253 applicants.

Table M7: Independent Selection Advisory Committees by agency, 2011–12
Agency Committees established and completed Candidates considered Candidates recommended
Department of Human Services 14 615 130
Department of Defence 14 446 58
Australian Taxation Office 3 3,143 432
Department of Foreign Affairs and Trade 3 1,207 422
Department of Agriculture, Fisheries and Forestry 3 299 115
Total 37 5,710 1,157

Employment-related services (fee-for-service)

The Regulations provide that the Merit Protection Commissioner may, but is not required to, undertake a range of employment-related functions on behalf of non-APS bodies, such as Commonwealth authorities to which the PS Act does not apply or other government bodies. The Merit Protection Commissioner may charge a fee for such services. Some of the services are provided on an ongoing basis under a memorandum of understanding.

Fee-for-service work can include staff selection services and training relevant to the Merit Protection Commissioner’s functions, as well as investigating grievances and providing career advice. Over the last few years, a significant proportion of this fee-for-service work has been the provision of members of selection panels for the Australian Federal Police (AFP).

In 2011–12, the fee-for-service work performed by the Merit Protection Commissioner consisted of support work for ISACs and staff selection on behalf of the AFP. Recruitment advisers undertook work on behalf of the Merit Protection Commissioner as MPC nominees on 21 ISACs during 2011–12. In previous years this activity was not reported separately from the ISAC data.

Table M8 provides information on the remaining fee-for-service activity performed by the Merit Protection Commissioner (excluding ISAC-related activity) in 2011–12, in comparison with the previous two years. In 2011–12 the only work completed for this category was staff selection work done for the AFP.

Table M8: Other fee-for-service functions—workload and work completed, 2011–12 compared to 2009–10 and 2010–11
2009–10 2010–11 2011–12
On hand at start of year 9 11 5
Received during the period 60 48 33
Completed 54 47 29
Lapsed/withdrawn 4 7 2
Total finalised during the period 58 54 31
On hand at end of year 11 5 7

The downward trend in the number of fee-for-service requests continued in 2011–12. Since 2009–10, the number of requests received has fallen by 45%, with a resulting 46% decrease in the number of completed services.

Box M9: Notable issues and trends arising from the case work—case study

Should an agency reopen a decision not to investigate an employee for suspected misconduct because the complainant is dissatisfied?

Case study 10

A manager sought review of an agency decision not to investigate an employee for suspected misconduct for refusing to follow the manager’s guidance and for alleged acts of rudeness and harassment.

The manager’s concerns had been the subject of a harassment investigation, the outcome of which was that the employee was counselled about their behaviour.

The manager was concerned that no action had been taken and sought a review of action. The person conducting the first review interviewed an additional witness and recommended that the employee be investigated for suspected misconduct. The recommendations of this review were not acted on due to an oversight and the manager sought further review when they became aware of the lack of action. A second review found that the agency had dealt with the original harassment complaint and that no further action should be taken against the employee.

The Merit Protection Commissioner found that, notwithstanding the evidence of the new witness, the first review was an insufficient basis for investigating the employee for suspected misconduct. In the view of the Merit Protection Commissioner, the first reviewer reached a different conclusion on the same set of facts and there was no significant new information that presented the behaviour of the employee in a more serious light.

The Merit Protection Commissioner noted that the employee had been advised, following the harassment investigation, that there would not be an investigation of their behaviour as suspected misconduct. The Merit Protection Commissioner commented that, notwithstanding the manager’s interest in this matter, the agency’s primary consideration must be whether there was a sufficient basis to investigate the employee for suspected misconduct and whether to reopen this decision would have been fair to the employee whose behaviour was the subject of the complaint.

The Merit Protection Commissioner’s better practice guide Not just about process: the review of actions scheme notes that complainants may have a strong preference for pursuing a matter formally, including through an investigation of a colleague for suspected misconduct. However, the complainant’s view will not be the factor that determines whether a matter is investigated for suspected misconduct. Their status is that of a witness and their view of the seriousness of what they are alleging will not necessarily influence the outcome of a decision whether or not to investigate.

Whistleblowing

The PS Act and Regulations provide a scheme for APS employees to report alleged breaches of the Code of Conduct (such reports are known as whistleblower reports). A whistleblower report differs from a review of action in that the person making the report is treated as an informant and as such needs only to be provided with enough information to assure them that their complaint has been considered appropriately.

Agency heads are responsible for establishing procedures for handling whistleblower reports. In the first instance, such reports are expected to be made to, and investigated by, the relevant agency head. Where the employee is not satisfied with the agency’s response to their report, or in other circumstances (for example, where it is not appropriate for the agency head to deal with the matter), a whistleblower report may be referred to the Merit Protection Commissioner or the Public Service Commissioner. Information on whistleblower reports made to the Public Service Commissioner is contained in Part 2 of his annual report.

In 2011–12, the Merit Protection Commissioner received nine whistleblower reports, one more than in 2010–11. More than 70% of applications were acknowledged within six weeks of receipt. Whistleblowing cases often comprise large volumes of material and it can take some time to determine that the employee is seeking to lodge a whistleblower report or that the application meets the jurisdictional requirements. Table M9 shows action taken by the Merit Protection Commissioner in response to these cases.

The eight inquiries underway at the start of the year were finalised, and in all cases it was determined there was no, or insufficient evidence that warranted a recommendation to the relevant agency head to investigate a potential breach of the Code of Conduct.

Of the nine applications received in 2011–12, four were found to be invalid as the applicant was not an APS employee and in one case the age of the matter was such that the Merit Protection Commissioner considered there was no purpose to be achieved in pursuing the case. Two inquiries were undertaken and finalised, and in one of the cases, a recommendation was made to the agency head to investigate two potential breaches of the Code of Conduct. There were two reports on hand at the end of the reporting period.

The complaints received this year from public servants concerned allegations of bullying and harassment, making false complaints, failure to follow agency procedures and bias in decision-making.

The Merit Protection Commissioner and her delegates, in reporting to agencies on the outcome of inquiries, aim to support agencies by identifying ways to strengthen their people management practices in areas raised by the report.

While the number of whistleblowing reports lodged is low, they often concern complex interpersonal matters and the issues can take a long time to assess, including whether any or all of the matters have been appropriately investigated by the agency in the first instance.

Table M9: Whistleblower cases received by the Merit Protection Commissioner, 2011–12 compared to 2009–10 and 2010–11
Whistleblower complaints 2009–10 2010–11 2011–12
Number of reports
Cases on hand at the start of the reporting period 3 2 8
Received 6 8 9
Finalised 7 2 15
On hand at the end of the reporting period 2 8 2
Source of reports
Current APS employees 5 6 4
Non-APS employee or unknown 1 2 5
Action by Commissioner
Referred to agency head for consideration 3 1 0
Investigated under whistleblowing powers 2 0 10
No further action or referred elsewhere 2 1 5

Box M10: Notable issues and trends arising from the case work—Case study

Taking into account circumstantial evidence to decide that bullying and harassment has occurred

Case study 11

An employee sought review by the Merit Protection Commissioner of an agency decision that their manager had not engaged in bullying and harassing behaviour but in reasonable management action.

The employee had worked for the APS for one year in a training role and commenced a permanent placement. Within one month of obtaining permanent employment, the employee had been placed on a performance improvement plan and the manager had requested that the employee’s use of the internet be audited. The employee received detailed emails from the manager advising the employee about their tasks and providing a summary of what the employee had thought were informal discussions about work tasks. The employee also complained about the manager’s threatening language and intimidating mannerisms.

The employee sought primary review by their agency. The reviewer determined that the actions taken by the manager were reasonable management actions but recommended that a number of informal actions be taken to address some issues with the manager’s management style. In conducting the review, the review officer declined to consider circumstantial evidence provided by a harassment contact officer of eight similar complaints about this manager’s behaviour over the preceding year, as well as evidence from two employees who had previously been supervised by the manager and experienced similar behaviour.

The primary reviewer interviewed three independent witnesses, only one of whom corroborated the employee’s account of the manager’s behaviour.

The Merit Protection Commissioner took account of the circumstantial evidence from the harassment contact officer and the two employees who had previously been supervised by the manager and noted that this significantly increased the probability that the employee’s complaints had substance. The Merit Protection Commissioner noted that:

‘... the circumstantial evidence in this case was considerable and, even when afforded less weight evidentially, it significantly increased the probability that the actions described by [the review applicant] had in fact occurred. This is attributed to the amount of evidence provided by the [harassment contact officer] and the evidence obtained from [the two employees] all of which featured a striking similarity to [the review applicant’s] complaint’.

The Merit Protection Commissioner recommended that the agency’s review decision be set aside and that a number of actions be taken to address the manager’s behaviour. The Merit Protection Commissioner also recommended that reference to the performance improvement plan be removed from the employee’s personnel file.

Governance, management and accountability

Role, function and structure

The office of the Merit Protection Commissioner is established under section 49 of the Public Service Act 1999 (PS Act). The Merit Protection Commissioner’s functions are set out in section 50 of the PS Act and Parts 2, 4, 5 and 7 of the Public Service Regulations 1999 (the Regulations). They include:

  • reviewing employment actions and promotion decisions
  • undertaking inquiries into whistleblower reports made to the Merit Protection Commissioner by APS employees alleging breaches of the APS Code of Conduct
  • providing employment services for APS agencies, in particular Independent Selection Advisory Committees (ISACs)
  • conducting other reviews, in particular reviews of the entitlements on separation of former APS employees and reviews of the employment-related actions of statutory office holders
  • providing employment services to non-APS organisations on request, including agencies in other jurisdictions
  • providing other inquiry functions, including inquiries into alleged breaches of the APS Code of Conduct by the Public Service Commissioner and inquiries into APS actions at the request of the Public Service Minister.

The Merit Protection Commissioner charges a fee for establishing ISACs and for providing employment services.

Nature of role

The Merit Protection Commissioner contributes to maintaining high standards of public administration through:

  • ensuring that the APS Values are effectively applied
  • improving the quality, efficiency and effectiveness of agency employment-related decisions and the management of merit-based employment
  • supporting agencies to maintain fair review procedures
  • promoting the highest ethical standards.

In particular, the Merit Protection Commissioner:

  • oversees the APS review of employment actions scheme by providing independent review as well as guidance and feedback to agencies on review arrangements and employment-related decision-making
  • works with APS agencies to deliver effective, merit-based selection processes, including establishing ISACs to assist in agency recruitment programs
  • supports public sector agencies more broadly, and other organisations, with employment-related services on a fee-for-service basis.

Box M11: Notable issues and trends arising from the case work—case study

Dispute about the level of an employee’s performance

Case study 12

A team leader of an operational team sought review of a performance rating of ‘fully effective’, arguing that their results against their performance measures indicated a rating of ‘exceptional’. In particular, the team leader cited the increased productivity of the team and evidence from staff survey results that the team was highly engaged.

The team leader had 84 separate performance measures in their agreement and an additional 10 key performance indicators. The Merit Protection Commissioner noted it was impractical to rate the team leader’s performance on the basis of a literal assessment against each measure. This was because of the large number of performance measures and because some of the measures were behavioural. In the Merit Protection Commissioner’s opinion the performance assessment in this case involved making a broad judgment of the team leader’s overall performance against business outcomes. In this circumstance, an employee could be rated above the fully effective level even if not all performance measures were met.

The Merit Protection Commissioner noted evidence that the team leader had maintained high levels of productivity in circumstances of a growing and, at times, excessive workload. At the same time, the team leader oversaw a significant turn-around in indicators of staff wellbeing.

The Merit Protection Commissioner took the view that the team leader’s performance went beyond what the team leader should have reasonably been expected to achieve with the resources available. As a result, the Merit Protection Commissioner recommended that the original performance rating be set aside and that the team leader be awarded a performance rating of ‘very good’.

Organisational structure

The office of the Merit Protection Commissioner is co-located within the Australian Public Service Commission. The staff who support the Merit Protection Commissioner in the performance of her functions are employed in the Commission and are made available by the Public Service Commissioner in accordance with section 49 of the PS Act. As an independent statutory office holder, the Merit Protection Commissioner reports to the Minister for the Public Service and Integrity.

The Ethics Group in Canberra provides coordination and policy support for the Merit Protection Commissioner while the Merit Protection Commissioner’s review and fee-for-service activities are performed in the Commission’s Sydney regional office by employees in the Ethics and Client Engagement Groups. The principal adviser is based in the Ethics Group in Canberra and is the full-time delegate of the Merit Protection Commissioner for review decision-making. During 2011–12 she was supported by three other delegates.

Interaction of the Merit Protection Commissioner’s and the Public Service Commissioner’s roles

The respective responsibilities of the Merit Protection Commissioner and the Public Service Commissioner are established in the PS Act. The two roles are complementary, particularly in relation to protecting the integrity of the public service and maintaining confidence in public administration.

The Public Service Commissioner is responsible for promoting the APS Values and Code of Conduct and evaluating the extent to which agencies incorporate and uphold the APS Values and comply with the Code. The Merit Protection Commissioner, by reviewing individual actions or decisions for consistency with the APS Values and other requirements, and through reviews of determinations of breaches of the Code and/or sanctions, helps to ensure the quality and consistency of decision-making and people management practices across the APS and also provides an important assurance role for the APS.

In practice the two Commissioners work closely together on systemic matters relating to the APS.

This report and further information about the Merit Protection Commissioner’s role and services are available on the Commission’s website.

Corporate governance

The Public Service Commissioner, as the head of the Commission, is responsible for its corporate governance. The Merit Protection Commissioner is a member of the Commission’s Executive—a senior management group chaired by the Public Service Commissioner.

The Merit Protection Commissioner has taken on a wider governance role within the Commission. The Merit Protection Commissioner assists in the Commission’s governance arrangements by chairing the Audit and Risk Management Committee and by providing management and strategic oversight to the Ethics and Corporate Groups as appropriate. The Merit Protection Commissioner has no direct management role in respect of these groups.

The Merit Protection Commissioner and the Public Service Commissioner have a memorandum of understanding for the provision of staff to assist the Merit Protection Commissioner.

References

1 Twenty-four out of time cases have dates recorded when the case was allocated to a review adviser. Prior to 5 March 2012, the database did not record the date a review was allocated to a review adviser. For some cases allocated prior to 5 March 2012, staff of the Merit Protection Commissioner have retrospectively entered allocation dates in the system but these are an approximation only.

2 Following administrative rearrangements in 2011–12 Centrelink became a program within the Department of Human Services. In previous years Centrelink was one of the three large agencies.

3 Data for 24 ISACs was not recorded in 2010–11 as a result of data recording problems arising from the transition of the ISAC function to a new office.