The information on timeframes for lodging a review of action on this page has been updated. The PDF version of of this material refers to the timeframes applicable in 2008.
Non-SES employees who have been found to have breached the Code and who wish to challenge either the determination that a breach has occurred or the sanction imposed (except in the case of termination of employment), may lodge an application for a review of actions under Division 5.3 of the Regulations (reproduced in Appendix 1). A decision to suspend an employee can also be the subject of review.
A decision to temporarily re-assign the employee's duties would be subject to review only where the temporary reassignment was made under section 25 of the PS Act (i.e. not imposed as a sanction under section 15) and involved any of the circumstances provided for in Schedule 1 of the Regulations.22
An application for review of a determination that an employee has breached the Code, or of a sanction imposed for a breach of the Code, must be made to the Merit Protection Commissioner (regulation 5.24(2)). Applications for the review of decisions relating to suspension will generally be made in the first instance to the agency head (regulation 5.24(1)). The making of an application for review does not operate to stay the action (regulation 5.36).
There are time limits applying to the lodgement of a request for a review of action. An application to the Merit Protection Commissioner for a review of:
- a determination that the Code has been breached must be made by the employee within 60 days of the determination of breach
- the imposition of a sanction must be made by the employee within 60 days of the imposition of the sanction
An application for review made outside these timeframes will generally be considered not to be reviewable unless there are exceptional circumstances explaining the delay (regulation 5.23(3)(a)).
An employee who has been dismissed is not able to request a review of a decision to terminate the employment but may have the right under the unfair dismissal provisions of the Workplace Relations Act 1996 to apply to the AIRC for a remedy.
The Commission can provide information to agencies and individuals about the review of actions process. However, the Commission cannot give advice on whether an application for review should be lodged in a particular case or particular circumstances. Further information can be obtained from the nearest Commission office or the Commission website.
The review process
An application must be lodged directly with the Merit Protection Commissioner if:
- the application is for review of a finding of a breach of the Code
- the application is for review of a sanction, other than termination, imposed for breach of the Code.
In other cases, the initial application should be lodged with the agency head or their delegate. The Merit Protection Commissioner is not authorised to investigate applications for suspension which have not first been investigated by an agency unless:
- the relevant agency head was personally or directly involved in the action under review
- the employee believes that it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the application
- the employee believes they are being victimised or harassed for having made a previous application for review of another action.
The request for a review to the Merit Protection Commissioner must be in writing and should state why the review is being sought.
Lodging an application for review does not operate to stay the action for which the review is sought. Once lodged, the application can be withdrawn at any time.
In general terms, any review that is conducted will address the following issues:
- whether the agency's Code procedures comply with the Directions
- whether those procedures were substantially complied with by the agency in the course of determining whether there was a breach of the Code
- on the evidence available, what act or acts were committed by the relevant employee
- did they amount to a breach of the Code
- if yes, was the sanction appropriate in all the circumstances?
When a review is completed, the Merit Protection Commissioner makes a report to the agency head and, if the Merit Protection Commissioner is satisfied that the relevant action was in some way unreasonable, the Merit Protection Commissioner may recommend that the agency:
- reconsider or change any relevant decision
- change its rules or procedures
- take some other appropriate action.
If a recommendation is not accepted, the Merit Protection Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.
The applicant will be given a copy of the Merit Protection Commissioner's report to the agency head. While there is no further right of review under the PS Act or the Regulations, the affected employee could seek judicial review under the general law or the Administrative Decisions (Judicial Review) Act 1977.
Key points for agency guidance material
While it is not a PS Act requirement to notify employees of their review rights, it would be good practice to include some information in agency guidance material. The guidance material could also provide links to the advice on the Commission's website. This site contains advice provided by the Merit Protection Commissioner and contacts for the Commission's regional offices.
22 Clause 10 of Schedule 1 of the Regulations provides that:
An action that determines, under section 25 of the Act, duties of an APS employee, or the place or places where they are to be performed, unless the action involves:
- a reduction in classification
- a relocation to another place
- a promotion that meets the following criteria:
- the affected employee was an applicant for the promotion
- the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules
- there were serious defects in the selection process
- the assignment to an employee of duties that the employee could not reasonably be expected to perform.