Workplace disputes: Five essential steps to conduct a fair merits review
The Employment Principles in the Public Service Act state that the APS needs to make fair employment decisions with a fair system of review.
An employee may come to you, a HR Professional, for a review of a workplace action or decision that they feel is wrong, unfair, or unreasonable. This may include their manager’s assessment of their performance, the handling of a bullying and harassment complaint, or a decision about working from home.
In this guide, we help you with the five essential steps you need to take to ensure you are conducting a fair review and getting the balance right.
There are five essential factors that every review needs to have, and if you get these right then you are achieving what our Employment Principles set out to do.
Step 1 – Set the scope
Sometimes review applicants may raise a whole range of issues that are causing them distress. They may not be able to articulate the precise action or decision they are seeking review of, or may have difficulty understanding how a review may be conducted. A key part of your role is to set the scope of the review, that is, identify the action or decision that will be reviewed, and explain to the review applicant the issues or matters that your review will not cover. Next, talk through the issues with the applicant and explain how your review will be undertaken. You will need to clearly set out the scope of the review and confirm that in writing. This is an important step as it ensures your review won’t stray into unrelated areas and will let you focus on the key issues in dispute. It also ensures the applicant’s expectations match what the review is about and what can be achieved.
Step 2 – Gather all the information
A critical step in conducting a review is gathering all of the information that was available to the original decision maker. This is important as your role in conducting a review is to ‘stand in the shoes’ of the original decision maker and consider all of the information they had regard to when they made their decision. You can’t do that effectively unless you have access to all of the information the original decision maker took into account when they made their decision. You will also need to obtain all of the relevant policy documents, and other applicable material, such as any new relevant facts or information that postdate the original decision. There is nothing worse than seeking to finalise a review and realising you have missed a key witness statement, or key policy document!
Step 3 – Know the framework
In conducting a review on the merits of a workplace decision, you will need to have regard to all of the relevant legislation, policies as well as the facts of the case. Consider whether any parts of the Public Service Act or Regulations apply, as well as any other legislation such as the National Employment Standards in the Fair Work Act. You’ll also need to carefully consider what other policies may apply; these might include broad policies affecting the public service generally, like APSC circulars, or policies within your own agency. Often your Enterprise Agreement or Workplace Determination will also be a relevant consideration in your review.
Step 4 – Make it fair
We all know that people are more likely to accept an unfavourable outcome if they feel they have been fairly treated along the way and feel they have been heard. It is incredibly important to make sure you follow all the steps that your policy outlines, and make sure your review applicant is afforded procedural fairness. How to ‘make it fair’ will differ case to case, but may include allowing some additional time for an applicant to make a submission if they have been unwell, and will include making sure you give your review applicant an opportunity to comment on any new information you gather in the course of your review. You should also check if the original decision maker followed the steps the relevant policy said they would follow.
Step 5 – Look at the merits
Now we get to the core of the issue – what is the best decision in the circumstances? Your role as a reviewer is to look at all of the information you’ve gathered in the previous four steps, and come to the correct or preferable decision in the circumstances. Sometimes this involves carefully weighing evidence, or balancing needs and interests.
So to recap…
A review is not simply doing a compliance check to see if the relevant policy was followed. Your role as reviewer is to ‘stand in the shoes’ of the original decision maker and make a fresh and impartial decision, taking into account the most up-to-date information available. This can be a tricky task, but if you’ve set the scope of your review well in step 1 and obtained all of the relevant documents in step 2, you have all the tools you need to consider the framework from step 3 to conduct the review and make your decision. You know the outcome will be a fair one, due to your actions in step 4, regardless of whether you confirm, vary, or set aside the original decision at the end of step 5.
Need more advice?
If you need help, or are unsure, you can always contact the Merit Protection Commissioner on (02) 8239 5330 (option 2), or head to our website. We have tips and traps for agencies and decision makers, video explainers and case studies to walk you through a variety of workplace disputes. The MPC also has regular webinars for employees, and offers training session for agencies, HR and review practitioners.