Review of action performance
Table M1 in the appendix provides information on the number of applications for review (other than promotion review) received, and reviews completed, in 2013–14. The table compares results for 2013–14 with 2012–13.
In 2013–14, the Merit Protection Commissioner received 227 applications for review and carried over 52 cases from the previous year. This represents a 15% increase in applications, and an 11% increase in the total number of cases handled, compared with 2012–13. Applications for reviews of Code of Conduct decisions increased significantly by 68%, whereas reviews of other employment decisions increased slightly by 4%. In part, this increase was a result of legislative change requiring employees to seek review of the breach determination decision within strict time limits. Employees no longer wait for the sanction decision before seeking review. However, even when the influence of this legislative change is factored in, the increase in applications for review of Code of Conduct decisions is still significant at 36%.
A total of 227 cases were finalised in 2013–14, of which 85 were reviewed (that is, they were not ruled ineligible or withdrawn before the review was finalised). Of the 52 cases carried over from 2012–13, all were finalised in 2013–14.
Figure M1 shows the trends in review casework over the last seven years. The number of applications for review has nearly reached the peak experienced in 2010–11; however my review team has managed this workload and exceeded performance targets. This is mainly because of the constant focus on improvement in efficiencies and the emphasis placed on capability development over recent years.
This report uses the terms ‘primary’ and ‘secondary’ reviews. Primary reviews are reviews I conduct without their 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. For most employment matters the agency head conducts the primary review. I conduct a secondary review if the employee is not satisfied with the review conducted by the agency head or has been told that the matter is not reviewable.
Figure M1: Trends in review caseload, 2007–08 to 2013–14
The target timeframe for completion of reviews is 14 weeks from receipt of application. I focus on both timely and quality reviews. Timely resolution benefits both the employee and the agency as it increases the prospect of achieving a positive workplace culture and minimises the impact on the individual, colleagues and the agency. Quality is important to the credibility of the review outcome and assists the review parties to gain a deeper understanding of the issues and their obligations as employees and managers.
Table M2 in the appendix provides information on the timeliness with which the review function was performed. The table compares results for 2013–14 with 2012–13.
In 2013–14, the review function exceeded its performance target. The percentage of cases completed within target times was 95.3%. This compares to 69.5% in 2012–13 and 18% in 2011–12. This improvement is a culmination of the work undertaken to streamline the handling of review cases and to increase the capability of the delegates and review team.
The average time taken to finalise a case was just under 13 weeks, compared to 21 weeks in 2012–13. The four reviews not completed in time were multi-faceted and particularly complex and took an average of eight months to finalise. The average time taken to finalise Code of Conduct and secondary reviews both decreased in 2013–14 compared to 2012–13 (by 41% to 12.9 weeks and 32% to 13.3 weeks, respectively).
At 30 June 2014, 94% of the 52 cases carried over to 2014–15 were still within the target date for completion.
The time it takes to finalise cases is influenced by the level and complexity of the issues under review and the time it takes to gather relevant information from agencies and applicants.
Cases are put ‘on hold’ while the reviewer is waiting for papers or a response from an applicant, or for files or additional information from the agency—events that are outside the control of my office. There are some circumstances in which a case can be placed ‘on hold’ for reasons within the control of my office—in particular, the scheduled office closure over Christmas or a long-term unscheduled absence. Time ‘on hold’ is not counted towards timeliness statistics for the function.
In 2013–14, on average 33% of the time between the date an application was received and the date the review was finalised was spent ‘on hold’—i.e. the review was not being actively worked on. The average time on hold for a finalised review was 6.5 weeks.
Delays in the control of the review applicant (collecting information or their unavailability) accounted for 36% of the days ‘on hold’. A further 53% were delays resulting from the agency's actions or inactions; for example, delays in agencies providing files or additional papers. This is an area where small improvements by agencies could contribute to faster resolution of cases particularly with regard to secondary reviews. Where an application for secondary review is received, agencies are required by the Regulations to forward the relevant papers to the Merit Protection Commissioner within 14 days; however, in 40% of the finalised cases, there was an average delay of one week in the agency providing the papers.
The remaining 11% of ‘on hold’ time was attributable to my office. The closure of the office between Christmas and the New Year accounted for 8.4% of ‘on hold’ time.
During the year, 45 reviews lapsed or were withdrawn, compared to 39 in 2012–13. The main reason for reviews lapsing is the applicant leaving APS employment either through resignation or because their employment was terminated by their agency. The average amount of time a withdrawn or lapsed review was under consideration was just over 5.5 weeks in 2013–14. Cases that are not accepted and those cases that my delegates have ruled ineligible under the Regulations often involve some consideration of the merits of the review applicant's case before deciding to proceed no further with a review. These cases were under consideration for an average period of nearly nine weeks of the 14-week case target.
Applications not accepted
In 2013–14, 35% of applications received, or carried over from 2012–13, were not accepted for review, compared to 31% in 2012–13.
Eleven applications for a review of a Code of Conduct decision were not accepted in 2013–14 for the following reasons:
- They were out of time (seven cases).
- The application was lodged before the agency had made a determination of misconduct or imposed a sanction (two cases).
- The Merit Protection Commissioner had no jurisdiction in one case as the person was not an APS employee and in the other case the complaint was about actions in a non-APS agency.
The proportion of applications for secondary review not accepted in 2013–14 (46%) was higher than in 2012–13 (36%). Of the 75 applications not accepted for review in 2013–14, the applicant was advised in 21% of cases to make an application with their agency as no primary review had been conducted. A further 21% of cases were out of time, and in 36% of cases the delegate decided that a review was not justified in all the circumstances. These circumstances include that the agency had already addressed the employee's concerns and nothing could be achieved by reviewing the matter further. The remaining cases were not accepted for a variety of reasons, including that the application was about a matter that fell into one of the categories of non-reviewable actions set out in Schedule 1 to the Regulations.
Employees are able to apply to the Merit Protection Commissioner for a primary review of an action under the following circumstances:
- if the agency head was directly involved in the action
- if it is not appropriate because of the seriousness or sensitivity of the action for the agency head to deal with it, or
- if the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.
Eleven applications of this type were not accepted for review in 2013–14, generally because the delegate considered that the matters were appropriate for the agency head to review.
Box M5: Review case—decision not to offer voluntary redundancy not reviewable
An employee applied to the Merit Protection Commissioner for review of their agency's decision not to offer them a voluntary redundancy at the completion of an expression of interest and assessment process. The employee submitted that the assessment process was flawed and sought a recommendation from the Merit Protection Commissioner that the agency offer a voluntary redundancy.
The Merit Protection Commissioner noted that a wide range of decisions related to voluntary redundancies are not reviewable actions. Regulation 5.23(2) provides that those actions mentioned in Schedule 1 to the Regulations are not reviewable and this includes, at item 1, ‘Action about the policy, nature, scope, resources or direction of the APS or an Agency’.
The Merit Protection Commissioner considered that a range of decisions about voluntary redundancies are inherently about one or more of the elements listed in item 1 and are therefore not reviewable. These include decisions about whether or not voluntary redundancies will be offered; the business areas, classifications and locations in which they will be offered; and the number that will be offered. However, the Merit Protection Commissioner also considered that actions taken to implement the relevant policies or processes are not excluded by item 1 and, unless otherwise excluded, are reviewable actions.
In this case, the Merit Protection Commissioner decided that review of the action was not otherwise justified in all the circumstances as provided by regulation 5.23(3)(g).
The agency had set assessment criteria for retention of employees with ‘unique specialist skills or knowledge’ or those undertaking a ‘critical role’ that could not be performed by others ‘without significant adverse business impacts’. The employee disagreed that these criteria applied in their circumstances. The Merit Protection Commissioner agreed that the criteria set a very high bar; however, the assessment panels were required to apply the criteria having regard to general principles that included retaining ‘high performing and high potential’ employees and those whose exit would cause a ‘negative impact to business outcomes’. The employee and the agency's assessment panel had clearly differing views of the meaning to be attached to the criteria. However, the agency had consistently indicated that it wished to retain the employee and, in the circumstances, the Merit Protection Commissioner decided that there was little utility in conducting a review of the application of the assessment criteria and the guiding principles. The Merit Protection Commissioner noted that a voluntary redundancy benefit arises as result of loss of employment at the initiative of the employer and that there is no entitlement to be made redundant.
Review by agency
Table M3 in the appendix details the number of reviews by agency.
As would be expected, the agencies with the highest number of applications for review were the larger employers, namely the Department of Human Services (DHS), the Department of Defence (Defence) and the Australian Taxation Office (ATO). These three agencies accounted for almost two-thirds of the completed reviews, a similar result to the previous two years. However, while the number of DHS cases remained at a similar level, the number of review applications made by ATO employees fell by 50% compared to 2012–13. At the same time, the number of applications for review from Defence employees increased by 62.5% for both Code of Conduct cases and secondary reviews.
The Merit Protection Commissioner may recommend to an agency head that a decision be set aside, varied or upheld.
In 2013–14, 80% of the finalised reviews (85) resulted in a recommendation to the agency head to uphold the original agency decision, compared to 70% in 2012–13. However, a higher proportion of secondary reviews were upheld (85%) compared with reviews of Code of Conduct decisions (74% upheld). This is because the primary review conducted by agencies assists to correct errors in decisions and provides an opportunity for the agency to intervene and resolve an issue at an early stage.
There was variation also in the review outcomes for Code of Conduct decisions.All sanction-only decisions reviewed were upheld, compared to 71% of cases upheld where the review was of both breach and sanction decisions.
One secondary review application was resolved through negotiation with the agency. I welcome opportunities to resolve an employee's concerns through a negotiated outcome. However, this can be difficult to achieve at the secondary review stage because by that time and following sometimes lengthy review by the agency, the parties to the review often hold entrenched views and lack trust that their agency is open to alternative options. In addition, some reviews are not suitable for a negotiated outcome because they are a dispute about factual matters.
If I am not satisfied with an agency's response to my delegate's recommendations, section 33(6) of the PS Act provides that, after consulting the Public Service Minister, I may provide a report to the relevant agency minister and to either or both of the Prime Minister or the Presiding Officers, in the latter case for presentation to the parliament. Recommendations from my delegates were accepted in all but two cases in 2013–14. In these two cases, agencies had not responded to the recommendation by the end of the reporting period. One response, accepting the recommendation, was received on 2 July 2014.
Recommendations to vary or set aside an agency decision are not made lightly. Such recommendations may reflect either substantial procedural flaws (particularly in Code of Conduct reviews), which mean the outcome was likely to have been unfair to the employee, or that there has been a greater consideration of the evidence and the employee's case. My expectation is that agencies will accept the recommendations of my delegates and that there would need to be exceptional circumstances to explain why a recommendation based on an independent and expert assessment is not accepted.
It is evident from my casework that sometimes Code of Conduct decision-makers and investigators do not adequately understand the process of administrative decision-making and in particular, their obligations to adhere to their agency procedures and to procedural fairness obligations such as ensuring the employee has the opportunity to comment on any adverse information.
I also observe difficulties that agency decision-makers have in articulating reasons for decisions, including explaining how apparently contradictory evidence was assessed and how they reached a conclusion about the facts of the case. Agency decision-makers, at times, struggle to distinguish between fact and opinion and to make objective assessments of the evidence uninfluenced by the emotional responses of complainants and witnesses.
At times, I observe examples of poor investigatory practice; for example, asking witnesses leading questions and failing to follow-up evidence that would enable the decision-maker to determine a disputed fact. I am concerned that some decision-makers take an unsophisticated approach, particularly if the employees under investigation vigorously dispute the facts during the investigation. This is sometimes viewed as a lack of remorse when the employee is simply exercising a right to defend themselves. This approach can also result in a decision-maker having a closed mind about the merits of an employee's argument.
Review cases can involve more than one issue—for example, a performance management case may involve both an underperformance process and an allegation of bullying. In order to better capture data, changes were made to my database for 2013–14 to enable more than one type of subject matter to be recorded. This means that the data presented in this report is not directly comparable to that of 2012–13 in certain areas.
There is a change in how the Code of Conduct data is reported with regard to subject matter. In contrast with previous years, this year a significant number of employees applied separately for a review of a determination that they had breached the Code of Conduct and review of the sanction imposed for the breach. This year, these separate applications for review of a Code breach and a sanction have been included with the applications from employees who sought both reviews at the same time. This has resulted in a smaller number of applications than in previous years for review of the sanction decision only and no applications for a breach decision only.
The types of employment matters for which review is sought are shown in Figure M2. When sanction-only decisions are combined with other Code of Conduct reviews, the number of Code of Conduct cases as a proportion of the number of cases reviewed is similar to 2012–13 at 41%. The only significant changes were a fall in performance management cases (9%), which had risen last year, and a small rise in the number of cases involving alleged harassment (up 5%).
Figure M2: Cases reviewed by subject, 2013–14
A further change was made to the data collection to allow more than one secondary subject matter for reviews, other than Code of Conduct. For the 50 cases reviewed, there were 54 subjects identified. There was a greater spread of types of matters reviewed this year (23 different subjects compared to 13 in 2013–14). Five subject matters (attendance/leave, hours of work, performance appraisal, bullying and harassment, and management practices) made up 52% of cases reviewed. Table M4 in the appendix shows the subject matter of review cases.
Employees concerned about their entitlements under enterprise agreements also have access to the dispute resolution provisions in those agreements. Research undertaken by my staff in April 2014 using a snapshot of agency review cases involving employment conditions demonstrated that employees who sought review by the Merit Protection Commissioner had not also taken their case to the Fair Work Commission.
Breaches of the Code of Conduct
APS employees who are found to have breached the Code of Conduct can apply directly to the Merit Protection Commissioner for a review of the determination that there has been a breach, and any sanction imposed for that breach.
There were 79 applications for review of a decision that an employee had breached the Code of Conduct and/or the sanction imposed for a breach, and 19 cases on hand at the start of the year. Thirty-five cases were reviewed during the year involving 28 employees. There were 18 requests for review of both the breach and the sanction. Two employees failed to make applications for review of a breach determination in time and only had the sanction reviewed. Eight employees only sought review of the sanction decision.
Based on data in the Commissioner's annual State of the Service Report, I estimate that I review between 7% and 10% of agency Code of Conduct decisions. This provides a significant and targeted assurance check on the soundness of agency decision-making. When applications that are not accepted, lapsed or withdrawn are included, the figure for review by the Merit Protection Commissioner is much higher.
Allegations of poor personal behaviour in the workplace were a significant factor in my Code of Conduct review caseload in 2013–14. There were 17 cases where this was a significant reason for the agency investigating the employee for suspected misconduct. Of these, six involved bullying and harassment including two cases of sexual harassment. There were three cases where employees were investigated for behaviour towards their managers, two for behaviour towards colleagues and one towards a junior colleague. Four of the cases of inappropriate personal behaviour involved some interaction with clients.
The management of attendance at work also featured in two cases in the review caseload, including false recording of attendance and dishonesty about attendance.
Two cases involving a conflict of interest were reviewed—one involving an employee who gave a reference during a tender process and one involving a failure to declare income.
Another case involved a failure to deal with clients' issues in a timely way.
Inappropriate use of information technology (IT) was involved in 29% of the reviewed cases (eight out of 28). Two cases of unauthorised access to client records in agency databases were reviewed, including access to the records of the review applicant's family members. There were five cases involving sending inappropriate emails or messages and one involving excessive use of IT.