Reviews of action performance
The Corporate Statement commits the Office to gains in productivity, quality and timeliness of reviews. The key target is that 75% of reviews will be completed within target timeframes. The target timeframe to complete reviews of actions is 14 calendar weeks—it is eight or 12 weeks for promotion reviews, depending on the size of the applicant field.
The Office again met its performance targets this year, although there was a reduction in the proportion of review of action cases finalised within the target timeframe (77.4% compared to 91% in 2015–16). This is still a good result given the number of large complex cases and the largest turnover of staff in the Office since its relocation to Sydney in 2010–11. The majority of promotion reviews (92%) continued to be completed within the relevant timeframes despite a 30% increase in the number of completed reviews.
This year we gave presentations to stakeholders to support improvements in decision-making. These presentations included addresses to the Australian Government Leadership Network in three states on ‘The right way to investigate wrongdoing’; a presentation to the APS Code of Conduct Practitioners’ Network on ‘Challenges in Code of Conduct decision-making’; and presentations to three agencies on ‘Gender equality and merit reviews as a strategic lever’. The Merit Protection Commissioner and delegates continued a commitment to educating SES managers through presenting on ‘Leading with integrity—APS Values, Employment Principles and ethics’ to orientation sessions for new SES officers.
‘Colleagues who attended the Tas [sic] People Management Network meeting last Friday also attended your AGLN presentation on 21 July. When asked for their thoughts re any takeaways etc., feedback was: dynamic speaker; engaging; interesting presentation re recruitment/selection processes; flexibility in the recruitment regs was noted—something to make better use of; and consensus was that speaking for 1.5 hours and not progressing beyond the first slide was impressive.
We have had previous sessions like this before but no one was able to explain it as well and in depth and apply it to situations as Annwyn.’
(Feedback from Australian Government Leadership Network forums)
The Office seeks feedback through a survey of review clients once their review applications have been finalised. The survey responses are anonymous, so they cannot be linked to specific cases. The client survey was updated and relaunched in 2016–17. The survey period covered reviews finalised from April 2016 to March 2017 and had a disappointing response rate of 18% compared with 45% for 2015–16. The survey is voluntary and we do not know why the response rate was so low.
The survey feedback confirmed that the MPC website was the primary source of information about review rights for clients, followed by information provided by the employing agency. The majority of clients found the website easy to navigate. However, 30% of survey respondents would have liked more information from the MPC’s review advisers about the scope of the review and the review process.
Only one survey respondent thought the reasons for decision difficult to understand. This reflects the Office’s investment in previous years in communicating decisions in plain English. Survey respondents’ most common complaint was that their views about their case had not been sufficiently taken into account by the delegate. This indicates that more work is needed on explaining and managing the expectations of employees—in particular, the balance between a clear, concise report and referencing all evidence.
‘I really want to extend my deepest appreciation to your team … for taking the time to assess what was a complex matter. I have had a great experience with the MPC ... and your fairness in making your judgements by allowing both sides the right of reply throughout the process has been exemplary.’
(Feedback from review applicant, June 2017)
Figure M1 shows the trends in review casework in the past 10 years.
Table M2 (see appendix) provides information on the number of applications for review (other than promotion review) received, and reviews completed, in 2016–17, as compared with 2015–16.
In 2016–17, the number of cases subject to a full review on the merits increased by 24%. A total of 200 cases were finalised, of which 93 were subject to a full merits review. The remainder were ruled ineligible for reasons discussed below. The total included 47 carried over from 2015–16 and finalised.
This increase in the output of the Office occurred against a backdrop of a 10% reduction in applications for review (177) compared with the previous year. The decrease was across all review categories, including a 19% decrease in applications for review of Code of Conduct decisions. We attribute this decrease to our investment in sharing lessons and clarifying approaches with both agencies and individuals.
Table M3 in the appendix provides information on the timeliness with which the review function was performed. The table compares results for 2016–17 with those of 2015–16.
As noted, 77.4% of review cases were completed within target times. The average time taken to finalise a case can be influenced by its complexity, as was evident this year. The average time taken to finalise a case was 14.6 weeks, but if five large, complex cases are excluded, the average is 13.4 weeks—well within the 14-week target.
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 accounted for in timeliness statistics.
In 2016–17, on average 33% of the time between the date an application was received and the date the review was finalised was spent on hold; that is, the review was not being actively worked on. The average time on hold for a finalised review was 7.2 weeks, compared with 6.4 weeks in 2015–16. Figure M2 shows the reasons for delays. Improved information for agencies about identifying the relevant documents required for the review appears to have been a factor in reducing how agency processes delay finalising cases. Delays in receiving agency papers (24.8%) have reduced by more than half since 2014–15.
Applications not accepted for review
In 2016–17, 35% of cases were not accepted for review, compared with 39% in 2015–16. The main reasons for not accepting reviews of Code of Conduct decisions were that the application was made out of time or the application did not concern a Code of Conduct breach or sanction decision. The four main reasons for not accepting applications for review of matters other than Code of Conduct decisions were as follows:
- 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 (35%).
- The application was out of time (23%).
- The application was about a matter that fell into one of the categories of non-reviewable actions set out in Regulation 5.23 or Schedule 1 to the Regulations (21%).
- The applicant needed first to seek a review from their agency (13%).
Some of these cases are resolved quickly but cases involving the exercise of discretion can take a long time because consultation with the applicant is usually required. The average time taken to decide to decline an application was seven weeks.
Number of reviews by agency
Table M4 (see appendix) details the number of reviews by agency. We completed reviews in 22 agencies. The Department of Human Services accounted for nearly 52% of the completed reviews. The Departments of Defence and Immigration and Border Protection and the Australian Taxation Office together accounted for a further 25%.
The Merit Protection Commissioner may recommend to an agency head that a decision be set aside, varied or upheld.
In 2016–17, there was an increase in the number and proportion of cases in which we recommended that the agency decision be varied or set aside—26% (or 24 cases) compared with 12% in 2015–16. This reversed a trend in the past few years towards an increase in the number of recommendations to uphold the original agency decision. I am more likely to recommend that Code of Conduct decisions be varied or set aside than for other types of reviews—this year one third of all reviewed Code of Conduct cases (41) were set aside or varied. In comparison, I recommended in 18% of secondary reviews that the agency’s decision be varied or set aside. The nature of the cases this year has been particularly complex and challenging and involved exercise of discretion.
Agencies still face challenges in analysing evidence and establishing clearly the facts of a case, particularly in complex cases. The analysis and reasoning in agency reports is sometimes unsophisticated and of poor quality. This is an area where agencies need to improve the capability of employees undertaking this work, including identifying employees with the appropriate skill set to make quality administrative decisions, providing tools and advice, and ensuring that this work is quality assured.
Box M3: Procedural concerns
The quality of agencies’ written work in Code of Conduct cases can create procedural concerns. A failure to put allegations clearly, in a way that is readily understood by a general reader, can adversely affect an employee’s capacity to respond, denying the employee a fair hearing.
The following are examples from cases:
- Allegations were put to the employee in a long and confusing document, so that it was difficult for the employee to understand the case they had to answer.
- Serious allegations were put to the employee but less serious findings were made. However, the agency had failed to put the less serious matters to the employee as an allegation.
- An agency redacted witness evidence so extensively in the written notice of the allegations that the employee, and a general reader, would have had difficulty following the evidence, including being unable to identify which witness had given which evidence.
Two reviews were conducted under Part 7 of the Regulations of findings that a former APS employee had breached the Code of Conduct. In one case, the Merit Protection Commissioner recommended that the agency decision be set aside on the basis of a concern about procedural fairness; in the other case, she recommended that the decision be upheld.
There is an expectation that an agency would accept the recommendations of an independent and expert statutory office holder, except in exceptional circumstances. Section 33(6) of the Public Service Act enables the Merit Protection Commissioner to raise an agency’s response to a delegate’s recommendations with the relevant agency minister and with the Prime Minister or the presiding officers. At the end of the reporting period, agencies had accepted all review recommendations.
In 2016–17, Code of Conduct cases accounted for 54% of all cases reviewed—a greater proportion than in 2015–16 and 2014–15 (41% and 45% respectively).
Figure M3 and Table M5 (see appendix) provide a breakdown of cases reviewed by subject matter, excluding Code of Conduct reviews.
Note: Excludes Code of Conduct cases.
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.
Based on data in the Commissioner’s annual State of the Service Report over the last three years, it is estimated that the Merit Protection Commissioner reviews between 4% and 10% of agency Code of Conduct decisions.6 Review by the Office provides an assurance check on this important area of employment decision-making.
There were 58 applications for review of a decision that an employee had breached the Code of Conduct and/or the sanction, and 28 cases on hand at the start of the reporting period. Fifty cases were reviewed during the year, involving 41 employees.7 Two applications from former employees were also reviewed.
In five cases we recommended that the findings of misconduct, and/or the sanctions, be set aside. In two of those cases, the agency had not established that the employee had engaged in misconduct. In one other case, we concluded that the agency should not have proceeded to a finding of misconduct once it had learnt about the employee’s mental health.
In the two remaining cases, we recommended that agencies set aside the decisions because of concerns about procedural fairness. In one of these cases, the agency had denied the employee a hearing, and in the other, the agency had failed to put adverse information to the employee before it made its decision.
In a further nine cases the breach and/or sanction decision was varied. In four of these cases the findings of breach were varied. This was a result of problems with the agency’s analysis of evidence and the reasoning in investigation reports and decisions. In particular, some of the alleged breaches could not be sustained on the facts and/or the decision-maker had applied the wrong elements of the Code of Conduct to the employee’s behaviour, with the effect of exaggerating the seriousness of the behaviour. In another of the cases, the agency failed to apply the most relevant element of the Code of Conduct to the employee’s behaviour, and we recommended an additional finding of breach.
Three sanction decisions were varied with a recommendation to reduce the severity of the sanction, including a recommendation that a reduction in classification be reduced to a reassignment of duties. In the remaining case, we recommended both a variation of a breach decision and a reduction in sanction.
Figure M4 and Table M6 (see appendix) provide a breakdown of the types of employment matters in Code of Conduct reviews.
The range of alleged misconduct we reviewed in 2016–17 was varied. Unauthorised accessing of client databases and inappropriate personal behaviour involving bullying, harassment and/or other discourteous behaviour accounted for the largest number of cases. Four of the nine unauthorised access cases involved access to the employee’s own records. In seven of these cases, the employee suffered a financial penalty and all sanctions were upheld on review. In two cases, we recommended that the decisions be set aside because of procedural flaws.
Examples of inappropriate use of agency ICT resources included an employee who used a text replacement ‘plug-in’ to disguise use of inappropriate language in a departmental chat room. In another case the employee was found to have written discriminatory and derogatory comments about customers and colleagues in emails and on the department’s internal messaging software. In this case, we upheld the sanction decision of a reduction in classification.
Allegations of bullying and other discourteous and disrespectful behaviour (11 cases) represented a further 26% of cases (compared with 36% in 2015–16). These cases included employee behaviour towards managers, colleagues and the public ranging from threatening physical harm to making inappropriate comments about colleagues in emails or in conversations. In one case, an employee was found to have failed to stop contacting a work colleague outside work and the sanction of a reduction in classification was upheld. One manager was reduced in classification from Executive Level 2 to Executive Level 1 having been found to have engaged in bullying behaviour towards subordinate staff and colleagues in other teams.
Failure to accurately record attendance and failure to follow a direction concerning attendance represented another significant area of the review caseload.
There were three cases where employees failed to perform their client service duties in accordance with agency procedures, including one case where the employee provided a benefit to a client to which the client was not entitled, in circumstances where the employee had a conflict of interest.
There were two cases where an employee’s behaviour outside work became the subject of a misconduct finding. One of these involved the employee’s behaviour as a client of the agency and the failure to provide accurate information to determine the employee’s entitlements.
There were three cases where employees argued that their mental health should have been taken into consideration before making a finding of misconduct. In two of those cases, the employee’s mental health was taken into consideration when reviewing sanction. That consideration resulted in no change to the sanction decision. In the third case, we recommended that the misconduct finding be set aside.
The two reviews of findings of a breach of the Code of Conduct by a former employee (under Part 7 of the Regulations) involved misuse of Commonwealth information and a conflict of interest with respect to recruitment.
Promotion review performance
APS employees can seek a review of an agency’s decision to promote an employee to jobs at the APS 1 to 6 classification levels by demonstrating that they are more meritorious than the employees who were promoted.
The promotion review application rate remained high in 2016–17. There were 177 applications received, one more than in 2015–16. The number of applications in 2015–16 had increased by 274% over the previous year, the second highest number of promotions reviewed since 2001–02. In 2016–17, large recruitment exercises in the Australian Taxation Office, the Department of Human Services and the Department of Immigration and Border Protection accounted for 89% of finalised promotion reviews.
Figure M5 shows how the promotion review casework has fluctuated over the past 10 years. Table M7 (see appendix) sets out the promotion review caseload for 2016–17.
The number of promotion reviews makes it hard for us to identify suitable members to sit on promotion review committees. We sought assistance from agencies to identify independent members for large promotion review exercises. In one agency, a single panel was established and was able to finalise a number of cases in a single day. The Office refreshed its list of agency nominees for promotion review committees and provided training to new committee members in Canberra, Sydney and Perth during May–June 2017. The participation of a representative range of agency staff on promotion review committees provides practical experience across the APS in merit-based recruitment.
We met with agencies to help them prepare for, and manage, large promotion review processes and to provide feedback on the effectiveness of their recruitment plans. We received feedback from promotion review committees about the poor quality of review applicants’ statements made in support of their applications for review. In response our website now includes more guidance to review applications.
Over the past six years, the promotion review function has exceeded its internal performance targets for timeliness (75% of reviews in time). Despite the continued large number of applications, 97% of promotion reviews with a target timeframe of 12 weeks were completed in time. Ninety-one percent of those with an eight-week target timeframe were completed in time.
We received applications for review of promotion decisions in 13 agencies. Agencies with two or more applications for review are shown in Table M8 (see appendix).
In 2016–17 the largest number of applications for a single finalised promotion review exercise was 57. Twelve exercises had between 21 and 50 applications each and a further 15 had between 10 and 20 applications. The average number of applications per exercise was 6.9. By contrast, the maximum number of promotions considered by a promotion review committee in 2015–16 was 62, while the average number of applications per exercise was 12.6.
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 (see appendix) provides information on the number of applications under Part 7 in 2016–17. Four complaints about final entitlements were received. Three of these applications were not accepted; the fourth was withdrawn.
Two review applications received from former employees for determinations of misconduct made after they had ceased APS employment were finalised in 2016–17. We upheld one of these decisions and recommended that the second be set aside on procedural grounds. A third case is still under consideration.
We identified an omission from the Public Service Regulations with respect to the provisions for reviewing a breach of the Code of Conduct by a former APS employee. This concerned the agency head’s responsibilities on receiving a recommendation from this Office. In May 2017, I asked the Australian Public Service Commission to consider making an amendment to Part 7 Division 7.3 of the Regulations.
6 The State of the Service Report 2015–16 reported that 87% of the 717 employees investigated were found to have breached the Code of Conduct in 2015–16. In 2015–16, the Merit Protection Commissioner reviewed applications from 28 employees relating to breaches of the Code of Conduct and a further 28 were on hand. While the two sets of data do not include the same employees, a comparison over time provides an estimate that between 4% and 10% of agency decisions are reviewed.
7 Employees may apply separately for a review of a breach determination and the consequential sanction decision. If employees do this, their application for review is counted as two cases. It is for this reason that there are more cases than there are employees.