Cancellation of employment decisions
Where a decision maker has the authority to engage, promote or move an employee under the Public Service Act 1999 (PS Act), then the decision maker has the authority to revoke or vary the decision before it comes into effect.
However, it is important to note that an agency head or delegate does not generally have the power to unilaterally cancel an agreement to move an employee between agencies under section 26 unless the agreement permits this – see cancelling voluntary moves between agencies below.
The making of a cancellation decision must comply with the usual requirements of administrative law, including that:
- the person making the cancellation decision should be properly authorised (i.e. the agency head or delegate);
- procedural fairness is observed in the decision making process, including giving the affected employee a reasonable opportunity to comment; and
- the decision is made fairly, in good faith, taking into account only relevant considerations.
Cancellation decisions may be considered in a range of circumstances, including where an APS agency decides not to proceed with recruitment action because of financial or other considerations. Other circumstances include:
- subsequently discovering that a person has provided incorrect information as part of the application process
- serious flaws in the selection process
- the individual decides that he/she no longer wishes to continue with the proposed recruitment action.
Where an employment decision is cancelled, the affected individual may choose to seek legal redress where they feel they have suffered loss or detriment because of the cancellation.
Cancelling an engagement
Under section 22 of the PS Act, an agency head has the power to do two actions:
- make a written decision to engage a person; and
- engage a person so that, from a particular time, it can be said that the person is an APS employee.
The engagement of a person as an APS employee will either come into effect on a date stated in the written decision, or on the date the person commences duty. The decision can be cancelled at any time before the engagement takes effect.
Cancelling assignment of duties within an agency - including promotions
Under section 25 of the PS Act, an agency head may assign duties to an employee in the agency, either at the same classification the employee currently has or at a different classification. An ongoing assignment of duties at a higher classification is a promotion.
For assignments of duties other than promotions, the date of effect is determined by the agency head. The assignment may be cancelled before it takes effect, but this is not necessary as an agency head can simply reassign the employee to their original duties.
Section 36 of the Australian Public Service Commissioner's Directions 2016 (the Directions) determines the date of effect for a promotion. A promotion can be cancelled before that date.
Cancelling voluntary moves between agencies - including promotions
Section 26 of the PS Act provides that an agency head can enter into a written agreement with an APS employee for that employee to move to the agency and that, subject to the Directions, the agreement has effect according to its terms. If the move is a temporary move, the employee's current agency head must also be a party to the agreement (see section 37 of the Directions).
Given that section 26 is based on agreement between the employee and the agency head(s), an agency head does not have the power to unilaterally cancel an agreement entered into under section 26 unless the agreement permits this. If the agreement does not address grounds for cancelling a move, the agreement can only be cancelled or varied by further written agreement of the parties.
It is good practice for an agreement to include a provision which enables the move to be cancelled if either party chooses to withdraw from the agreement prior to it coming into effect. The agreement can either list events where cancellation is possible, or provide that the gaining agency head or the employee can withdraw from the agreement at any time before it takes effect. Examples of situations where an agency or an employee may wish to cancel a move include:
- the move involves a promotion and the promotion is overturned by a Promotion Review Committee (PRC);
- information becomes available which may have influenced the outcome had it been known during the selection process;
- the agency head becomes aware of a serious defect in the selection process;
- the employee has been selected for two or more opportunities
- there are unanticipated changes to the employee's personal circumstances;
- there is an unanticipated change to the operational requirements in the agency.
Notification of a cancellation decision
An agency head must notify a decision to cancel a promotion in the Public Service Gazette (the Gazette) where the original promotion was also notified in the Gazette – see section 35 of the Directions. The notification must include the date of effect of the cancellation decision and the person's name (unless the original notification did not include the person's name). The Directions provide that decisions (including cancellation decisions) should be notified in the Gazette within three months of the decision being made.
Impact of Machinery of Government changes on employment decisions
For information, see Machinery of Government changes.