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The review decision making process

A review will involve gathering and assessing evidence where there are factual issues that need to be determined to support the delegate's decision on the review application.

This will be relatively straightforward where the evidence relating to the employee's complaint is clear and uncontested, or where the matters do not involve serious consequences for the employee or others. It may be simply a matter of talking to the employee, looking at documentary evidence and forming a conclusion.

However, many complaints are multi-facetted. In some cases, such as bullying and harassment the evidence may be contested. In others, the employee has significant interests at stake, for example, where their level of performance is being questioned or where they are seeking leave for personal reasons that are important to them.

Many agencies have information to assist reviewers and delegates in conducting fact finding inquiries and making decisions on reviews of action applications. It is important however that the information does not focus on procedural requirements, including the requirement to give procedural fairness at the expense of the substance of the employee's concerns.

The framework for the review of actions scheme in the Regulations means that a reviewer's fundamental task is to attempt to resolve the employee's concerns (Regulation 5.27). To do this, the reviewer must address the substance of the employee's complaint. In seeking to resolve the employee's concerns, the reviewer must comply with the procedural requirements in Regulation 5.33 – the review must be procedurally fair, quick, informal and private.

The following are the key steps in a review inquiry.

The discussion draws on the Administrative Review Council (ARC) best practice guides on decision making. Guide No 3 Evidence, Facts and Findings is an important reference tool for persons undertaking administrative inquiries and is a useful supplement to information that agencies provide reviewers and delegates on their role and functions. The guide covers both the legal and practical issues associated with gathering evidence, determining its significance and relevance, and using evidence to reach findings of fact.

[See: These publications are found on the ARC website at the following link www.ag.gov.au/agd/WWW/archome.nsf/Page/Publications_Reports_Other_Documents]

Step 1 – Identifying the key issues
Step 2 – Planning the review
Step 3 – Gathering the evidence
Step 4 – Assessing the evidence
Step 5 – Making a decision
Step 6 – Recording the decision: the review report

Step 1 – Identifying the key issues

Identifying the key issues involves:

  • understanding the basis of the employee's complaint and
  • identifying the policies, instructions and guidelines that provide the framework within which the action occurred.

This can be challenging where the review applicant has a long list of complaints covering an extended period of time. It may not be helpful in these circumstances for the reviewer to take a literal approach and address each of the employee's complaints sequentially. This may lead to a loss of focus, confusion and unnecessary complexity.

The reviewer's role is to identify the key themes in the complaint and the key incidents that characterise the review applicant's substantive concerns. While historical issues might provide context, the time limits applying to review usually preclude inquiring into historical issues.

This does not mean that the reviewer only reviews what they feel confident in reviewing with the consequence that review applicant's substantive concerns are overlooked.

The initial discussion with the review applicant can help clarify the key issues and themes, historical concerns and whether they are relevant. It also helps in reaching an understanding on the scope of the review.

Example:

In bullying and harassment cases a review applicant may list a large number of incidents where they consider they were treated inappropriately. They may also make general allegations of bullying behaviour that are not linked to specific incidents. It is appropriate in this context for the reviewer, with the agreement of the applicant, to identify, and gather evidence on, some key incidents that are characteristic of the employee's concerns without investigating every specific incident.

Step 2 – Planning the review

For more complex reviews, it is good practice to develop a plan with indicative timefames, particularly for the evidence gathering stage. This will give an indication of how long the process will take and when the review applicant may have a response. It is also good practice for the reviewer to advise the review applicant of what is planned and how long it is anticipated to take.

Step 3 – Gathering the evidence

The reviewer should identify:

  • the facts that need to be established in order to make a decision on the review application and in order to do this
  • the evidence that is needed to establish those facts.

Evidence may come from documents (emails, letters, minutes, file notes, system notes, diary notes) or oral evidence (for example from witnesses to an incident).

Recording the evidence

All the evidence considered by the reviewer should be documented and kept on a file. This includes keeping records of interviews with the review applicant or other people spoken to as part of the review. It is good practice to give interviewees the opportunity to accept the content of the record of interview and to clarify the reviewer's understanding of what they said at interview.

Transparency

Having a record of the evidence considered in the review is important if the review applicant wishes to apply for secondary review by the Merit Protection Commissioner. Regulation 5.30 requires agencies to make available to the review applicant all relevant documents relied on in the primary review when an application for secondary review is received.

As a matter of good practice during the course of the review, the reviewer should be open with the review applicant about the evidence they are considering so that there are no surprises for the review applicant when it comes to secondary review.

Interviewing

Providing the review applicant with the opportunity to have a support person is good practice when interviewing. This is particularly the case when the review concerns allegations of harassment. In these cases, the offer may also need to be made to respondents and witnesses as well as the review applicant. Although review applicants may seem quite comfortable with proceeding without a support person, the absence of an offer from the reviewer may appear as a complaint when the matter comes to secondary review.

The general practice is that a support person is there to provide support and is not an advocate for the employee. It is important for review applicants to tell their story in their own words.

Confidentiality

It is not appropriate to give guarantees of confidentiality when gathering evidence for the review because, consistent with Regulation 5.30, information gathered in the primary review will be made available to the Merit Protection Commissioner and review applicants if they apply for secondary review.

Privacy issues

Review applicants and witnesses should be information about the likely use and disclosure of personal information gathered in the course of a review, consistent with the Privacy Act 1988.

Step 4 – Assessing the evidence

The following material draws on ARC Guide 3 and on work done in the Australian Public Service Commission to support review officers conducting inquiries on behalf of the Merit Protection Commissioner.

Evidence is used to establish the facts

Employment situations where the facts may be in dispute include:

  • an employee's level of performance
  • a manager's behaviour during a specific incident where the employee has said that they were bullied by the manager
  • an employee's record of attendance for the purpose of determining whether the imposition of an attendance management plan was justified.

Evidence must be relevant to the facts that need to be determined and must logically support the reviewer's conclusions about the facts.

Where the evidence is disputed (for example in a harassment case) no-one has an obligation to "prove their case". However, as a matter of practicality, if a person is making an accusation they have a responsibility to provide at least some evidence in support of that accusation.

Value of evidence

Not all evidence is of equal weight. The reviewer's role is to evaluate the evidence, applying logic, commonsense and their experience. A reviewer should consider the following.

Reliability

Evidence is more likely to be reliable if it:

  • can be confirmed or verified from another independent source
  • is contemporaneous with the event (a contemporary diary note of a conversation is likely to be more reliable than someone trying to recall the details of the conversation several months after it occurred)
  • first hand evidence rather than hearsay (first hand evidence of an event is what a witness to the event relates while hearsay evidence is what someone says they were told about an event by someone who witnessed it).

Example:

In harassment cases, a review applicant may complain of incidences of behaviour for which there are no direct witnesses. A reviewer may nevertheless be able to identify evidence that corroborates one or other of the parties to the incident. This can include contemporary records kept of a conversation, the accounts of persons who spoke to either party immediately after the incident and observed their behaviour or evidence of behaviour in other situations that might point to a propensity to behave in a particular way.

Expert opinion

An opinion has greater weight if it is given by someone with expertise on the matter. An example is a medical practitioner's diagnosis of a person's state of health. Reviewers may evaluate expert evidence for example by looking at the expert's area of expertise and whether the expert is venturing an opinion about something that is not in their area of expertise. However a reviewer should be wary of relying on their own non-expert opinion in a matter that requires expert judgement.

Absence of evidence

A reviewer does not need positive evidence of each and every matter. If there is no evidence it may be reasonable to conclude that something did not occur. However, the absence of evidence is unlikely to support a conclusion that something did occur.

Example:

If an employee claims that a manager has created a bullying culture but there is no evidence of this, it would be reasonable to conclude that this was not the case. However, a lack of witness statements about bullying is not in itself evidence of a workplace where people are afraid to speak out about bullying.

Evenly-balanced evidence

In some cases, the evidence may be evenly balanced or inconclusive. In this circumstance, a reviewer can either make no finding or see if there are other lines of inquiry that would generate evidence that might throw light on the matters in contention. If the review applicant suggests lines of inquiry that appear to be relevant, these should be pursued if it is practical to do so.

Example:

In performance management review cases, the review applicant may be disputing the rating given to their performance. It can be difficult for someone outside the business area to form a view on whether the review applicant is performing at an acceptable level. Depending on the seriousness of the dispute, particularly where the employee is about to be managed for under-performance, it is appropriate for a reviewer to seek informed views about the quality of the review applicant's output from a manager who has relevant experience but who is not working in the same area as the review applicant, or from an external expert.

Conflicts in evidence

Conflicting versions of an event do not mean that someone is lying. It is possible for people to perceive and remember events differently. It is generally better to focus on what the balance of evidence suggests is the truth of the matter (for example is one person's account consistent with other evidence) rather than focussing on whose account is to be believed.

Step 5 – Making a decision

Standard of proof

When coming to conclusions about disputed facts arising from an application for in review, the standard of proof is the "balance of probabilities", ie it is more likely than not that the fact is true.

Whilst the standard of proof does not change, in certain circumstances better evidence may be required to satisfy a reviewer about a particular fact. Such circumstances could include:

  • allegations of serious wrongdoing
  • where a fact is inherently unlikely
  • where the consequences of making a finding one way or the other are grave.

Lawfulness

The decisions and actions reviewed under the review of actions scheme are usually made, or done, under employment policies such as performance management guidelines and leave policies. They do not usually involve determining legislative entitlements. However, there may be some circumstances in which reviewers need to check that the decision was lawful. For example, when reviewing decisions to suspend an employee from duties under Regulation 3.10, it is appropriate for the reviewer to check that the person who made the suspension decision had the appropriate delegation to do so.

Procedural fairness

Procedural fairness requires that a decision be:

  • Free from bias (or an apprehension of bias) on the part of the decision maker (the bias rule)
  • Rational in that it is based on evidence that is logically capable of supporting the facts (the evidence rule) and
  • Fair in that a person likely to be adversely affected by the decision has an opportunity to present their case and to have their response taken into consideration before the decision is made (the hearing rule).

When complaining about the action that is the subject of the review, review applicants frequently argue that they were denied procedural fairness or natural justice. By this they generally mean that they did not have sufficient opportunity to state their case before a decision was made. However, not every decision requires a hearing. A hearing is unlikely to be necessary in the following circumstances:

  • The outcome does not affect a person's rights or their legitimate expectations (for example a person complaining of being harassed does not have a right to a hearing about whether Code of Conduct action is taken against the person about whom they have complained as their rights are not affected by this decision)
  • The decision involves the application of a benefit (for example a decision not to send an employee on a training program for career development purposes or to award a performance bonus on the basis of exceptional performance unless the evidence suggests that the employee had a legitimate expectation that they would receive the benefit)
  • The decision affects employees generally rather than the individual specifically (for example a decision to cease paying an on-call allowance to a group of employees).

While many of the decisions and actions that employees seek to have reviewed under the review of actions scheme do not have strict procedural fairness requirements, it is nevertheless good practice for managers to provide employees with an opportunity to state their case, before making a decision that an employee is likely to be concerned about.

However the failure to give an employee the opportunity to state their case (where procedural fairness obligations do not apply) does not necessarily mean that the decision should be set aside on review. In some cases it may not have been practical for this to occur or the employee may have had earlier opportunities to air their concerns before the decision was made.

Example:

A manager holds the view that an employee should not advance a salary point at the end of the performance management cycle because of poor performance. The manager is unable to communicate their intentions to the employee for comment. This is because the employee is on sick leave and the agency has medical opinion about the contribution of work related stress to his/her medical condition.

The employee is arguing that there has been a breach of procedural fairness. However, if the employee had notice during the performance management cycle that there were concerns about their performance and had been given the opportunity to comment and respond to these concerns, it may be reasonable to conclude that the manager's decision was fair notwithstanding that the employee was not given an opportunity to comment before the final decision was made.

Applying policy

An employee may seek review arguing that a decision is unfair in their circumstances even though the decision is in accordance with the agency's policy guidelines. In general, policy should not be applied inflexibly and it is important to recognise that decision makers sometimes see cases which present exceptional and compelling circumstances. For example, there may be cases where:

  • the employee's claims are very compelling even though what the employee is seeking is not consistent with an agency's policy
  • a broader view of the agency's business interests might suggest a favourable consideration of the employee's case.

Example:

Agencies' leave policies may give complete discretion to managers to decide applications for extended leave without pay in circumstances where employees are seeking leave to meet family responsibilities (other than parental leave) or to pursue alternative careers. The policy may indicate that the primary consideration is operational priorities of the business unit in which the employee works.

Where employees leave applications are refused in this circumstance, a review provides an opportunity to consider more fully any exceptional and compelling circumstances put forward by the employee. These could include family circumstances that suggest a compassionate response would be appropriate. They could also include employment opportunities outside the APS that may be in the broader interests of the agency.

Where such claims are put forward, it would not normally be sufficient for a review to assert the policy without giving any regard to the claims put forward by the employee.

Whether or not a decision maker is able to exercise discretion will depend on the legal authority for the policy for example whether what is termed a policy is in fact mandatory procedures under legislation or is limited by the terms of the agency's enterprise agreement.

Reaching the right outcome

Having collected the information and evidence, considered the context and the review applicant's concerns, the reviewer has to reach a view about:

  • the facts in dispute (for example was an employee's performance at an acceptable standard) and then
  • about the action itself.

The Regulations do not prescribe any tests that need to be applied to the action itself. An appropriate test, in the context of the policy intent of the review of actions scheme, is whether the action was fair and reasonable.

All the circumstances of the case will be relevant to determining whether the decision was fair and reasonable. A fair and reasonable decision does not simply mean was the decision procedurally fair or in compliance with agency policy. In making such a judgement it is helpful for the reviewer to consider:

  • the circumstances of the review applicant which may include both their employment history and personal circumstances – (in doing this it is useful for the reviewer to ask "if I were in this person's position how would I like to be treated by my employer")
  • the operating environment in which the employee works which may include operational pressures and what a manager can reasonably be expected to do when faced with an employee with the circumstances of the review applicant
  • the interests of the agency – its values framework, its people management framework and its broader objectives and
  • good people management practice.

The Australian Public Service Commission website has copies of better practice publications on a range of topics including recruitment, managing performance, behaviour and attendance. These are available from the publications page or the employment advice page at www.apsc.gov.au.

Step 6 – Recording the decision: the review report

Regulation 5.27(5) requires the Agency Head to tell the employee in writing of:

  • any decision made on the review action
  • any action to be taken as a result of the review
  • of the right to apply for secondary review to the Merit Protection Commissioner.

The review report is usually the way this statutory obligation is complied with.

Where the reviewer is not also the decision maker, their role usually includes preparing a report that details the review and recommends a decision to the delegate. In doing this it is important that the reviewer explains their reasoning. It is not sufficient simply to list all the documents and submissions that were considered. Nor should a reader be left guessing why the reviewer has reached the conclusions they have.

In addition, a well-argued and logical review report assists:

  • the review applicant to understand that the issue was seriously considered by the agency
  • in improving employment decision making and supports the agency in learning lessons from the review process.

A review report would ideally cover the following material.

  1. A summary of the review applicant's complaint and the outcome they are seeking
  2. Background information which includes key undisputed facts such as the employees classification level and job and undisputed history such as the date of particular incidents
  3. The actions that are being reviewed
  4. The facts that are in dispute, the findings on those facts and the evidence that was relied on to make those findings

Where conflicting evidence is involved, the reasons for preferring one lot of evidence over the other should also be set out.

  1. The policy framework within which the actions occurred
  2. Other issues relevant to the review applicant's concerns such as whether or not there has been a breach of procedural fairness in the course of the decision-making process
  3. The decision ie whether to confirm, vary or set aside the actions under review and the response to the outcomes the review applicant is seeking from the review
  4. The reasons for the decision detailing the steps in the reasoning process in other words a chain of reasoning that leads logically from the relevant facts to the decision

In doing this it may assist reviewers to discuss their reasoning with a senior colleague and possibly, depending on the circumstances, a legal adviser

  1. Advice about the option of seeking secondary review by the Merit Protection Commissioner.