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Review employment-related decisions

Reviews of action performance

The corporate priorities statement, following the performance indicators in the Portfolio Budget Statements, commits the Office to meeting and, where possible, improving performance against target timeframes for review. The relevant measure is that 75% of reviews will be completed within target timeframes.

This year the Office met its performance targets despite a significantly increased caseload. The number of applications increased for both review of employment actions (23%) and review of promotion decisions (274%).

The review function again exceeded its performance target by completing 90.7% of reviews within 14 weeks. This is an increase on the 82% of cases completed within target timeframes in 2014–15. Despite the large increase in applications, 96% of promotion reviews were completed in time. These targets were met through a mix of continuous reduction in red tape and enhanced skills and commitment of Office staff. Completing reviews as quickly as possible following a proper consideration of the matter is important for all parties. Early resolution can prevent a breakdown in trust between parties and maintain a productive and safe work environment.

The Merit Protection Commissioner provides independent merits review of employment grievances in the APS. It is recognised that merits review assists in improving primary decision-making. To this end one of the major outcomes for 2015–16 is to 'improve employment decision-making capability across the APS'. The Merit Protection Commissioner measures success through:

  • feedback from agencies and applicants
  • reduction in applications for review relating to poor decision-making
  • requests from agencies for advice and feedback.

There is qualitative evidence that the Office is well regarded and has a positive impact on agency employment decision-making. At the request of agencies, the Merit Protection Commissioner and her delegates held briefing sessions with agency representatives, including senior executives and human resource practitioners, on improving employment processes and decision-making. These included the largest agencies—the Australian Taxation Office and the departments of Defence and Human Services—and a varied mix of small and medium-sized agencies. In addition, review case summaries are published on the website.2

The Merit Protection Commissioner has also used presentations to stakeholders to support improvements in decision-making. These presentations included an address to the Small Agencies Forum on initiatives regarding recruitment, promotion and code of conduct and orientation sessions for new SES officers on 'Leading with integrity—APS Values, Employment Principles and Ethics'.

Staff of the Office also provide feedback to agencies on the lessons learned from the handling of particular cases. This includes participating in conduct and review forums and assisting agencies to reflect findings in policies and procedures.

One agency commented that 'it was fantastic to have the opportunity to speak with the MPC after the conclusion of a review'. In the future they would also 'take on board MPC observations'.

In June 2016, employees from [Department] participated in a meeting with the Merit Protection Commission. 'It was a good opportunity to have a face to face discussion with the MPC and to hear about emerging issues and current trends. The MPC discussed the revitalisation of the suite of information and guidance material that will be available on their new website. A key benefit of the meeting was the open question and answer exchange, which provided valuable insight, strategies and techniques that can be used to manage the challenges surrounding issues relating to workplace behaviour and to improve outcomes.'

(Feedback from senior colleagues)

There is also quantitative evidence of an improvement in agency decision-making. The number of cases which are varied or set aside on review has fallen over the last five years, pointing to more effective decision-making by agencies—12% in 2015–16 compared to 30% in 2011–12.

Another key activity to improve the performance of the review function was to embed issues-based writing in review decisions. The success of this activity was measured by client feedback. The Merit Protection Commissioner seeks feedback through a survey of review clients generally about six to eight weeks after their application has been finalised. In 2015–16, the survey period covered reviews finalised from November to March. The survey had a 45% response rate. Notwithstanding the training investment the Office made in issues-based writing, including communicating decisions in plain English, 64% of survey respondents did not understand the written reasons for the decision and 43% did not find the report easy to understand. The Office will be monitoring the results of client surveys in 2016–17 to see if employee understanding of decisions improves as the issues-based writing is embedded.

Figure M1 shows the trends in review casework over the last nine years.


Figure M1: Trends in review caseload, 2007–08 to 2015–16


Review caseload

Table M2 in the appendix provides information on the number of applications for review (other than promotion review) received, and reviews completed, in 2015–16. The table compares results for 2015–16 with those for 2014–15.

In 2015–16, the Merit Protection Commissioner received 198 applications for review, a 23% increase in applications over the previous year. There were increases in applications for all review categories, including a 22% increase in applications for review of Code of Conduct decisions. Thirty-four cases were carried over from 2014–15 and all of these were finalised in 2015–16.

While the number of applications increased, the number of cases subject to a full review on the merits fell by 15.7%. A total of 185 cases were finalised in 2015–16, of which 75 were reviewed on the merits. The remainder were ruled ineligible for review for reasons discussed below.

Table M3 in the appendix provides information on the timeliness with which the review function was performed. The table compares results for 2015–16 with 2014–15.

As indicated above, 90.7% of review cases were completed within target times. The average time taken to finalise a case fell by over two weeks.

Review cases are put 'on hold' when the review is not able to progress. This is usually because the Office is waiting for information or because of the unavailability of parties to the review. Time 'on hold' is not counted towards timeliness statistics.

In 2015–16, 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 6.4 weeks, compared to 8 weeks in 2014–15. Notwithstanding the improvement in the timeliness of reviews, respondents to the feedback survey indicated that in 43% of cases they were dissatisfied with the time taken to review their matter. Further work is required in this area, including managing expectations.

Figure M2 shows the reasons for delays. The Office has improved information material for agencies, including checklists. This work appears to have contributed to a reduction in the contribution that agency processes made to the delay in finalising cases. Delays in receiving agency papers represented 49.1% of the total time a case was 'on hold' in 2015–16, compared to 56.4% in 2014–15.


Figure M2: Reasons for delays in reviews, 2015–16


Applications not accepted for review

In 2015–16, 39% of cases were not accepted for review, compared to 34% in 2014–15. The main reason for not accepting reviews of Code of Conduct decisions was that the application was made out of time. The reasons for not accepting applications for review of matters other than Code of Conduct decisions were:

  • the applicant needed first to seek a review from their agency
  • the application was out of time
  • review or further review by the Merit Protection Commissioner was not justified, including because nothing useful would be achieved by continuing to review a matter
  • 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
  • the employee was no longer eligible for review as their employment had been terminated or they had resigned.

Number of reviews by agency

Table M4 in the appendix details the number of reviews by agency. The departments of Human Service, Defence and Immigration and Border Protection accounted for two-thirds of the completed reviews. In 2015–16, reviews from the Australian Taxation Office accounted for less than 7% of the reviews finalised.

Review outcomes

The Merit Protection Commissioner may recommend to an agency head that a decision be set aside, varied or upheld.

In 2015–16, 88% of the finalised reviews (75) resulted in a recommendation to the agency head to uphold the original agency decision, compared to 82% in 2014–15. The Merit Protection Commissioner is more likely to recommend that Code of Conduct decisions be varied or set aside (17%) than she is for other types of reviews. For example, the Merit Protection Commissioner recommended in only 5% of secondary review cases that the agency's decision be varied or set aside.

Seventy-five per cent of breach decisions reviewed were upheld, compared to 82% of sanction decisions reviewed.3

The Merit Protection Commissioner expects agencies to accept the recommendations of her delegates. There would need to be exceptional circumstances to explain why a recommendation based on an independent and expert assessment is not accepted. Section 33(6) of the PS Act enables the Merit Protection Commissioner to raise an agency's response to a delegate's recommendations with the relevant agency minister and to the Prime Minister or the Presiding Officers.

An emphasis on issues-based report writing assists agencies to understand the reasons for recommendations made. Agencies accepted all review recommendations in 2015–16. At the end of the reporting period, one agency had not yet responded to a recommendation to vary an agency decision made for a case finalised in June 2016.

Subject matter

In 2015–16, Code of Conduct cases represented 41% of all cases reviewed, compared to 45% in 2014–15.

Figure M3, and Table M5 in the appendix, provide a breakdown of cases reviewed by subject matter, excluding Code of Conduct reviews. Conditions of employment and performance management continue to be the main subject matter for reviews other than Code of Conduct.


Figure M3: Cases reviewed by subject (excluding Code of Conduct cases), 2015–16


Breaches of the Code of Conduct

APS employees who are found to have breached the Code of Conduct can apply 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 72 applications for review of a decision that an employee had breached the Code of Conduct and/or the sanction, and 15 cases on hand at the start of the year. Thirty-five cases were reviewed during the year involving 28 employees.4

Based on data in the Australian Public Service Commissioner's annual State of the Service Report over the last three years, it is estimated that between 6% and 10% of agency Code of Conduct decisions are reviewed.5 Review by the Office provides an assurance check on this important area of employment decision-making.

Recommendations were made to vary or set aside findings of misconduct, and/or the sanctions imposed, in five cases. In one case, a breach decision was set aside because the agency had made findings that were not supported by the evidence. This finding concerned the employee's alleged failure to comply with the agency's tender evaluation processes leading to a conflict of interest. In another case, the agency found that the employee had failed to follow a direction. The Merit Protection Commissioner considered that no direction was in place and the employee in fact had failed to act with care and diligence.

The Merit Protection Commissioner recommended that one sanction decision be set aside on the basis that the employee had not engaged in misconduct and two sanctions be reduced, including in one case the removal of a financial penalty, on the basis of significant mitigating circumstances.

Figure M4, and Table M6 in the appendix, provide a breakdown of the types of employment matters in Code of Conduct reviews.


Figure M4: Code of Conduct cases reviewed by subject, 2015–16


Allegations of discourteous and disrespectful behaviour continued to be the most significant factor in the Code of Conduct review caseload in 2015–16. There were 10 cases (36% of finalised cases) where this was a significant reason for the agency investigating the employee for suspected misconduct.

These cases included employee behaviour towards their managers, colleagues and others in the workplace, including contractors. There was one case of a team leader found to have engaged in misconduct for bullying behaviour towards the team. In two cases, the employees' behaviour was sufficiently serious to be reduced in classification. In all other cases, financial penalties were imposed on the employees. In one case, the Merit Protection Commissioner recommended that the finding of misconduct be set aside on the basis that the behaviours the employee was accused of were not sufficiently serious to constitute misconduct. In another case, the Merit Protection Commissioner considered the mitigating circumstances and recommended that the financial sanction be set aside.

There were six cases in which employees were found to have browsed client records. In each of these cases, the employee received a significant financial penalty. All breach decisions were upheld, but the delegate recommended in one case that the financial penalty be reduced.

Three cases involving a conflict of interest were reviewed—all involving outside employment. In two cases the employees used agency resources for the purpose of conducting a private business. One employee was reduced in classification while the other was reduced in salary. All agency decisions were confirmed on review.

There were two cases where the employee failed to follow a direction—one direction concerned the employee's attendance, the other concerned smoking in the workplace.

There were five cases involving a failure to perform duties with appropriate levels of care and diligence. These cases involved performing regulatory functions, protocols concerning firearms and the unauthorised release of official information. The sanctions imposed ranged from a reprimand to a reduction in classification. All decisions were upheld on review.

Promotion review performance

APS employees can seek a review of an agency's decision to promote an employee to a job at the APS 1 to 6 classification levels by demonstrating they are more meritorious than the 'promoted' employees.

In 2015–16 there was a 274% increase in the number of applications for promotion reviews over the previous financial year. The year saw the second highest number of promotions reviewed since 2001–02. There was increased agency recruitment following the removal of the 'interim recruitment arrangements' at the end of 2014–15. In 2015–16, there were large recruitment exercises in agencies such as the departments of Human Services, Defence and Immigration and Border Protection and the Australian Taxation Office.

Figure M5 shows how the promotion review casework has fluctuated over the last nine years. Table M7 in the appendix sets out the promotion review caseload for 2015–16.

The large, and sustained, increase in promotion reviews provided challenges for the Office in identifying employees in a timely way to form promotion review committees. The Merit Protection Commissioner sought assistance from agencies to identify independent members to participate in committees for large promotion reviews. The Office also provided training to new committee members to enhance their recruiting skills. Participation by representatives from a range of agencies on promotion review committees helps ensure consistency of assessments and reinforces agency training on merit-based recruitment.

There was an administrative error by one promotion review committee which resulted in an application for review not being considered. The agency and the employees affected accepted the explanation and apology from the Merit Protection Commissioner.

Staff of the Office met with agencies to assist them to prepare for, and manage, large promotion review processes and to provide feedback on the effectiveness of large-scale recruitment design as observed from the promotion review process. This feedback identified some systemic issues in one agency and resulted in modification to address the concerns in later recruitment exercises.

Over the last five years, the promotion review function has exceeded its performance targets for timeliness (75% in time). Despite the large increase in applications, all promotion reviews with a target timeframe of 12 weeks were completed in time and 95% of those with an eight-week target timeframe were in time. The four promotion review committees outside the target time were less than six working days late.

Applications for review were received in relation to promotion decisions made in 14 agencies compared to eight in 2014–15. The three agencies with three or more applications for review are identified in Table M8 in the appendix. Eleven other agencies with one or two applications for review are not separately identified.

Promotion review committees varied 23 of the 920 promotions reviewed—a rate of 2.5%. This is consistent with the average rate of variation (2.5%) since 2007–08. As noted above, early identification of systemic issues had a positive flow-on effect to later exercises. The annual rate of variation over the 16 years since the PS Act commenced has ranged between 0.6% and 5.9%.


Figure M5: Trends in promotion review caseload, 2007–08 to 2015–16


This year the largest number of applications for a single finalised promotion review exercise was 62. Nine exercises had between 21 and 55 applications each and a further 15 had between 10 and 20 applications. The average number of applications per exercise was 12.6. By contrast, the maximum number of promotions considered by a committee in 2014–15 was nine.

Other review-related functions

Under Part 7 of the Regulations 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
  • review a determination that a former employee has breached the Code of Conduct.

Table M2 in the appendix includes information on the number of applications under Part 7 in 2015–16. Three complaints about final entitlements were received. The applications were not accepted. In two cases the matters related to issues that arose during the review applicant's employment. In the other case, the applicant was advised that the matter was more appropriately pursued in a court of competent jurisdiction.

Two review applications were received from former employees for determinations of misconduct made after they had ceased APS employment. One is still under consideration and the second was not accepted as it was out of time.


2. The 2015–16 case summaries are available at http://www.meritprotectioncommission.gov.au

3. Under regulation 5.24(2) an APS employee may seek review of an agency determination of a breach of the Code of Conduct, a sanction imposed as a result of a determination of a breach of the Code or a review of both the determination of a breach and the sanction imposed.

4. Employees may apply separately for a review of a breach determination and the consequential sanction decision. Where employees do this, this is counted as two cases. It is for this reason that there are slightly more cases than there are employees.

5. The State of the Service Report 2014–15 reported 84% of the 557 employees investigated were found to have breached the Code of Conduct in 2014–15. In 2014–15, the Merit Protection Commissioner reviewed 28 applications from employees relating to breaches of the Code of Conduct. While the two sets of data do not include the same employees, a comparison provides an estimate that almost 6% of agency decisions were reviewed.