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DGD16-031

Appeal mechanism Procedure

Contents

Contents....................................................................................................................................1

Purpose.....................................................................................................................................2

Scope........................................................................................................................................ 2

Roles and Responsibilities.........................................................................................................2

Procedure................................................................................................................................. 3

Implementation........................................................................................................................ 5

Evaluation ................................................................................................................................ 5

Related Policies, Procedures, Guidelines, Frameworks, Standards and Legislation..................6

Definition of Terms .................................................................................................................. 6

Search Terms............................................................................................................................ 7

Attachments..............................................................................................................................7

Doc Number Version Issued Review Date Area Responsible PageDGD16-031 X 01/10/2016 01/10/2019 P&C 1 of 15

Do not refer to a paper based copy of this policy document. The most current version can be found on the ACT Health Policy Register

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Purpose

This Procedure outlines ACT Health’s roles and responsibilities, and the processes to be followed, when an ACT Health employee is not satisfied with a workplace decision and wishes to appeal against that decision.

Scope

The Appeals process is governed by ACT Public Sector Enterprise Agreements (2013-2017).

Appeals under these provisions cover the following matters: Decisions about promotions or temporary transfer to a higher office or role for

periods in excess of six months, where the officer was an applicant for the position (except decisions made on the unanimous recommendation of a joint selection committee);

Decisions to promote an officer after acting for a period of twelve months or more (at or below ASO 6 or equivalent);

Decisions to suspend an employee without pay; Decisions to take disciplinary action, except decisions to terminate employment; Decisions to take underperformance action, except decisions to terminate

employment; Decisions taken in relation to redundancy issues, including an employee’s eligibility

for voluntary redundancy benefits, the amount of such benefits, the amount payable for income maintenance and the issue of involuntary redundancy notices or notices of reduction in classification; and

Any other decisions subject to appeal under the Public Sector Management Act 1994 (see Schedule 2 of the Act).

Other decisions against which an employee may wish to appeal are covered by the Internal Review section of the relevant ACT Public Sector Enterprise Agreement (see ACT Health Internal Review Procedure).

Roles and Responsibilities

All staff should: Familiarise themselves with the relevant provisions of the ACT Public Sector

Enterprise Agreements that relate to their employment and workplace.

The Director-General is responsible for: Nominating a convenor of the Appeal Panel; Considering the report of the Appeal Panel, making a decision on the report’s

recommendations, and informing the appellant in writing of the reasons for that decision within 14 days of receiving the report.



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The Appeal Panel Convener must ensure that the Panel: Acts in accordance with the principles of natural justice and procedural fairness in

considering applications; and Conducts proceedings with as little formality as possible, and as quickly as possible,

consistent with a fair and proper consideration of the issues.

People & Culture (P&C) is responsible for: Providing advice to managers and employees about the Appeal process; Selecting ACT Health’s nominee for Appeal Panels; and Coordinating any Appeal to ensure it is conducted in accordance with this Procedure

and the provisions of the relevant Enterprise Agreement.

Further roles and responsibilities are spelled out in the procedures detailed below.

Procedure

1. An employee (or their union or employee representative on their behalf) may initiate an Appeal under these Procedures by writing to the Director-General. This should describe the decision being appealed against, the reasons for the application and the outcome sought. It should be received within fourteen calendar days of the employee being notified of the decision.

2. The Director-General will forward the correspondence to the Executive Director P&C, who will act as the Appeal Panel Convener (or another person if, for example, the Executive Director P&C has a conflict of interest).

3. The Convener will determine whether the request meets the criteria set out in (1) above, and whether the decision being appealed is a matter that falls within the scope of the Appeals process of the Agreement. If not, the Convener will advise the employee that the matter will not be considered further, and the reasons.

4. If the request does meet the necessary criteria, the Convener will establish an Appeal Panel, comprising a representative of ACT Health, a nominee of the employee and a chairperson:

a. The Chairperson will be chosen from a panel of providers approved by the Commissioner for Public Administration where the Appeal is not about a promotional decision, or a person agreed by all parties where the Appeal relates to a promotion decision;

b. The Convener may be a member of the Panel if agreed by the appellant;c. No person who had a role in the decision being appealed against may be a

member of the Panel.

5. The Appeal Panel will review the decision being appealed against.



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6. The Convenor of the Appeal Panel will invite the appellant to have a support person, who may be the employee’s union or other employee representative, present at any meetings held with the Appeal Panel and will allow reasonable opportunity for this to be arranged.

7. At any time the Panel may cease consideration of the Appeal if it believes:a. the application is frivolous or vexatious, or not made in good faith; b. the employee making the appeal may apply to another person or authority about

the application who may more appropriately deal with the action; orc. further review of the application is not warranted.

Appeals about promotion and temporary performance

8. After investigating the matter, the Appeal Panel will either confirm the decision or make recommendations to the Director-General to substitute another decision. The only ground on which the original decision can be changed is that the employee making the Appeal would be more efficient in performing the duties of the position than the person promoted or selected for temporary appointment.

9. If the original decision is confirmed, the Convener will write to the Appellant within fourteen days informing them of the Panel’s decision.

10. If the Panel disagrees with the original decision, the Chair will report to the Director-General recommending that it be substituted by another decision. A copy of this report will be provided to the Appellant at the same time.

11. The Director-General will consider the Panel’s report and decide whether or not to accept its recommendation. They will then inform the applicant of this decision (and reasons if they do not agree with it), within fourteen days.

Appeals about other matters

12. Where the Appeal Panel determines that an application requires further consideration it will conduct a procedural review on the papers to determine whether it was open to the decision-maker to make the decision that they did, the principles of procedural fairness and natural justice were complied with, and the decision was appropriate in all of the circumstances.

13. In doing so the Panel will consider all relevant information and evidence that was available to the decision-maker in making the original decision.

14. Where the Appeal Panel is satisfied that a fundamental piece of evidence was not considered in the original process it may recommend to the Director General that the matter be referred back to the original decision-maker for further consideration.

15. The original decision-maker will, as soon as possible, either:



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a. further investigate the original decision in light of the comments from the Appeal Panel and report back in order that they may complete their review; or

b. provide written reasons to the Appeal Panel, within fourteen days, for not accepting their referral for further investigation.

16. The Appeal Panel will make a written report, with recommendations and reasons, to the Director-General. A copy of the report will be provided to the appellant at the same time. The Appeal Panel may request that the Director-General inform other parties of its recommendations.

17. The Director-General will make a decision on the report’s recommendations and will inform the appellant in writing of the decision and reasons within fourteen days of receiving the report.

Additional matters

Where the subject of the Appeal is a decision made by the Director-General, the Executive Director P&C, will consult with the Commissioner for Public Administration as to the procedure to be followed.

The employee or the employee‘s union or other representative may seek a review by the Fair Work Commission (FWC) of a decision. The FWC will be empowered to resolve the matter in accordance with the powers and functions set out in the Enterprise Agreements. The decision of FWC will be binding, subject to any rights of appeal against the decision to a Full Bench.

Implementation

This Procedure will be included on the ACT Health intranet on the Policy Register.

Evaluation

Outcome Measures All requests by employees appealing against workplace decisions are managed in

accordance with the Enterprise Agreements and this Procedure.

Method P&C maintains a record of all appeals lodged against a workplace decision and the

outcome of those appeals, and reports to Deputy Directors General as requested.

Related Policies, Procedures, Guidelines, Frameworks, Standards and Legislation



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PoliciesACT Health P&C Delegations Manual

ProceduresInternal Review Procedure

StandardsPublic Sector Management Standards 2016

LegislationPublic Sector Management Act 1994All ACT Public Sector Enterprise Agreements, 2013-2017Fair Work Act 2009 (Cwth)

Definition of Terms

Director-GeneralFor the purposes of this Procedure, this means the Director-General or their delegate, as set out under the Appeals section of the ACT Health P&C Delegations Manual.

Natural justiceThe provision of fairness to all parties, including the following principles:

All parties must be given the opportunity to respond, explain their version of events, and provide all information to ensure their response is complete; and

Any disciplinary action should be commensurate with the seriousness of the offence.

Procedural fairnessA process that is neutral, unbiased and respectful to the rights of parties involved in an investigation, including the following principles:

The right to be heard; The right to be treated without prejudice; and Being given an opportunity to respond.

DaysMeans calendar days

Search Terms

Appeal mechanism, appeal process, appeal panel, promotion, higher duties, temporary performance.

Attachments

Attachment 1 – Appeal Mechanism, ACT Public Sector Enterprise Agreements 2013-2017



http://inhealth/PPR/Policy%20and%20Plans%20Register/Human%20Resources%20Delegations%20Manual.docx

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Attachment 2 – Appeal Mechanism Flowchart – Promotion and temporary performance

Attachment 3 – Appeal Mechanism Flowchart – Matters other than promotion and temporary performance

Attachment 4 – Checklist for employees initiating an appeal

Disclaimer: This document has been developed by ACT Health, <Name of Division/ Branch/Unit> specifically for its own use. Use of this document and any reliance on the information contained therein by any third party is at his or her own risk and Health Directorate assumes no responsibility whatsoever.

Date Amended Section Amended Approved By



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Attachment 1

Appeal Mechanism, All ACT Public Sector Enterprise Agreements 2013-2017

SECTION J – APPEAL MECHANISM1

J1 Objective and Application

J1.1 This Section sets out an appeal mechanism for an employee where the employee (referred to in this section as “the appellant”) is not satisfied with the outcome of decisions described in the following clause.

J1.2 This appeal mechanism will apply to:a) decisions about promotion or temporary transfer to a higher office or role (for periods in excess of six months) affecting the officer where the officer was an applicant for the position, except decisions made on the unanimous recommendation of a joint selection committee (see PSM Act 1994 and PSM Standards );b) decisions to promote an officer after acting for a period of twelve months or more in a position at or below Administrative Service Officer Class 6 (or equivalent classification);c) decisions to suspend the employee without pay under clause H8 of this Agreement;d) decisions to take disciplinary action under subclause H10.1 of this Agreement, except a decision to terminate the employee’s employment;e) decisions to take underperformance action under subsection H4.17 of this Agreement, except a decision to terminate the employee’s employment;f) decisions taken in relation to an employee’s eligibility for benefits under clauses K5 and K6 of this Agreement and the amount of such benefits, the amount payable by way of income maintenance under clause K9, and the giving of a notice of involuntary redundancy or notice of reduction in classification under clauses K7 and K8;g) any other decision that is subject to appeal under the PSM Act.

J1.3 For purposes of paragraph J1.2 (a) and J1.2 (b), an appeal may only be made in relation to promotions or temporary transfer to a higher office or role where the pay applicable is any classification with a maximum pay that is less than the minimum pay of a classification equivalent to a Senior Officer Grade C. For positions above Administrative Service Officer Class 6 (or equivalent classification) an application may be made for an internal review of the process (see subclause I2.2 of this Agreement).

J1.4 For the purposes of paragraph J1.2(b), any suitably qualified officer may appeal the decision.

J1.5 An employee may have an entitlement to bring an action under the FW Act in respect of any termination of employment under this Agreement. This will be the sole right of review of such an action.

1 In the Nursing and Midwifery Agreement and the Medical Practitioners Agreement these provisions are included as Sections R and Q respectively.



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J2 Initiating an Appeal

J2.1 An employee, or the employee’s union or other employee representative on the employee’s behalf, may initiate an appeal under these procedures by making an application to the Convenor of Appeal Panels that:

a) is in writing; andb) describes the decision or action taken or to be taken, the reasons for the application and the outcome sought; andc) is received by the Convenor of Appeal Panels within fourteen calendar days of being notified of the decision to take the action.

J2.2 For the purposes of paragraph J2.1(b), a decision must be an appealable decision as set out in subclause J1.2.

J3 Composition of the Appeal Panel

J3.1 The head of service will nominate a person, or position, to be the Convenor of the Appeal Panel.

J3.2 Where an application is received by the Convenor of the Appeal Panel in accordance with the requirements set out in subclause J2.1 and J2.2 the Convenor of Appeal Panels will set up an Appeal Panel.

J3.3 The Appeal Panel will comprise a nominee of the relevant Directorate, a nominee of the employee and a chairperson, where:

a) the chairperson is chosen from a panel of providers approved by the Commissioner for Public Administration (in consultation with Joint Council), or, in the case of an appeal relating to a promotion decision, an agreed person; andb) a chairperson from the panel of providers is so chosen on a rotational basis, unless there is an identified conflict of interest, in which case the next person on the panel of providers would be chosen.

J3.4 The Convenor may only be a member of an Appeal Panel with the agreement of the appellant.

J3.5 A person is not eligible to be a member of an Appeal Panel if that person was involved in the decision or the process that is the subject of the application.

J4 Powers and Role of the Appeal Panel

J4.1 In considering an application, the Appeal Panel must have due regard to the principles of natural justice and procedural fairness. Proceedings of the Appeal Panel are to be conducted as quickly as practicable consistent with a fair and proper consideration of the issues.



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J4.2 The Convenor of the Appeal Panel will invite the appellant to have a support person, who may be the employee’s union or other employee representative, present at any meetings held with the Appeal Panel and will allow reasonable opportunity for this to be arranged.

J4.3 The Appeal Panel will have the discretion to decide not to conduct a review of the appeal application, or, if it has commenced reviewing the application, to decide not to proceed further if, in the opinion of the Panel:

a) the application is frivolous or vexatious, or not made in good faith; orb) the employee making the appeal may apply to another person or authority about the application who may more appropriately deal with the action; orc) further review of the application is not warranted.

Appeals about promotion and temporary transfer to a higher office or role

J4.4 For appeals concerning promotion or transfer to a higher office or role under paragraph J1.2(a), the only ground on which the Appeal Panel can review the decision is the officer making the appeal would be more efficient in performing the duties of the position than the person promoted or selected for temporary transfer.

J4.5 After reviewing an application about promotion or temporary transfer to a higher office or role affecting the appellant, the Appeal Panel will either confirm the decision or make recommendations to the head of service to substitute another decision. The head of service will inform the appellant of this decision and the reasons for the decision.

Other matters

J4.6 Where the Appeal Panel determines that an application for appeal requires further consideration, the Appeal Panel will conduct a procedural review on the papers to determine whether:

a) it was open to the head of service to take the action that he or she did;b) the principles of procedural fairness and natural justice were complied with in taking the original action or decision; andc) the final decision of the head of service was appropriate in all of the circumstances.

J4.7 The Appeal Panel must be provided with all relevant information and evidence that was available to the decision-maker in the making of the original decision or in taking the original action. To ensure efficiency and timeliness, the Appeal Panel should not undertake to collect the same information or new evidence.

J4.8 Where the Appeal Panel is satisfied that a fundamental piece of evidence was not considered in the original process, the Appeal Panel may recommend to the head of service that the matter be referred back to the original decision-maker for further investigation.

J4.9 The decision-maker, after considering the referral from the Appeal Panel under subclause J4.8, will:



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a) as soon as possible, arrange for a further investigation to be conducted, in line with the referral of the Appeal Panel, and will provide any further information, evidence or outcomes of the further investigation to the Appeal Panel in order that they may complete their review; orb) provide written reasons to the Appeal Panel, within fourteen calendar days, for not accepting their referral for further investigation.

J4.10 After reviewing any application under this section, other than an appeal about promotion or temporary transfer to a higher office or role, the Appeal Panel will, subject to subclause J4.8, make a written report containing recommendations to the head of service. A copy of the report will be provided to the appellant.

J4.11 In making recommendations to the head of service under subclause J4.10 or to the Commissioner for Public Administration under subclause J4.13, the Appeal Panel must provide the reasons for its recommendations.

J4.12 The head of service, after considering the report from an Appeal Panel under subclause J4.10, will make a decision on any recommendation in the report and inform the appellant in writing of the reasons for that decision, within fourteen calendar days of receiving the report.

J4.13 Where the subject of an application under this clause is a decision of the head of service then the Appeal Panel, after reviewing the application will, subject to subclause J4.8, make a written report containing recommendations to the Commissioner for Public Administration. A copy of this report will be provided to the appellant.

J4.14 The Commissioner for Public Administration, after considering the report from an Appeal Panel under subclause J4.13, will recommend to the head of service that the decision that is the subject of the application:

a) be confirmed; orb) be varied; orc) other action taken.

J4.15 The head of service, after considering the report from the Commissioner for PublicAdministration, may:

a) accept any or all of the report’s recommendation(s) and take such action as necessary to implement the recommendation(s); orb) not accept the report’s recommendation(s) and confirm the original action.

J4.16 If the head of service does not accept the recommendations of the Commissioner for Public Administration under subclause J4.14, the head of service will:

a) provide written reasons to the Commissioner for Public Administration for not accepting the recommendations; andb) provide the appellant, within fourteen calendar days, with written reasons for not accepting the recommendations.



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J4.17 If the head of service does not accept the recommendations of the Commissioner for Public Administration under subclause J4.14, the Commissioner may report on this outcome in the Commissioner’s Annual Report.

J5 Costs

J5.1 The Territory will not be liable for any costs associated with representing an appellant in these procedures.

J6 Right of External Review

J6.1 The employee, or the employee’s union or other employee representative on the employee’s behalf, may seek a review by the FWC of a decision of the head of service under subclause J4.12 or subclause J4.15.

J6.2 The FWC will be empowered to resolve the matter in accordance with the powers and functions set out in clause G2 of this Agreement. The decision of the FWC will be binding, subject to any rights of appeal against the decision to a Full Bench in accordance with clause G2.15.



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ATTACHMENT 2Appeal Mechanism Flowchart

Promotion and Temporary Performance



Does the matter fall within the scope and/or criteria for appeal as set out in Enterprise Agreement?

Applicant is advised that the matter will not be considered further, and reasons

Convener establishes an Appeal Panel

Appeal Panel conducts its investigation. Should the original decision be confirmed?

Director-General advises employee in writing of their decision and reasons within 14 days of receiving the

report

Director General forwards the request to the Executive Director P&C, who will act as Appeal Panel Convener, or appoint another person as Convener. Letter of acknowledgement sent to employee.

Director-General considers report and makes decision on its recommendations

Employee writes to Director-General seeking to initiate the Appeal process

Yes No

Are the grounds for appeal that the appellant would be more efficient in

performing the duties of the position than the person who was promoted or selected

for higher duties?

Yes

No

YesConvener writes to the

employee within 14 days notifying them of the Panel’s

decision and reasons

No

Appeal Panel reports to the Director-General recommending a change to the original decision. A

copy is also provided to the employee.

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ATTACHMENT 3

Appeal Mechanism FlowchartMatters other than promotion and temporary performance



Convener makes initial assessment. Does the matter fall within the scope and/or criteria for appeal as set out in Enterprise Agreement?

Applicant is advised that the matter will not be considered further, and reasons

Convener establishes an Appeal Panel

Appeal Panel finalises its investigation and reports to the Director-General on whether or not the original decision should be confirmed. A copy is also provided to the employee.

Director-General advises employee in writing of their decision and reasons within 14 days of receiving the

report

Director General forwards the request to the Executive Director P&C, who will act as Appeal Panel Convener, or appoints another person as Convener. Letter of acknowledgement sent to employee.

Director-General considers report and makes decision on its recommendations

Employee writes to Director-General seeking to initiate the Appeal process

Yes No

Appeal Panel conducts its investigation. Should the matter be referred to the original

decision-maker for further consideration?

Yes Original decision-maker considers findings of the Appeal

Panel and reports back

No

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ATTACHMENT 4

Checklist for Employees Initiating an Appeal

Set out below are matters that should be considered when an employee prepares a written request appealing against a decision.

Is this the right way to seek a review?The appeal mechanism is only for certain decisions about promotion or temporary transfer; suspension of an employee without pay; disciplinary action; underperformance action; and some matters in relation to redeployment and redundancy. (See your Enterprise Agreement under ‘Appeal Mechanism’ for full details.)

Is the decision about promotion or temporary transfer?The only grounds for appeal are that appellant would be more efficient in performing the duties of the position than the person who was promoted or selected for higher duties.

The following matters should be included in the letter seeking a review under the appeal provisions.

What is the decision being appealed against?

Why should the decision be reviewed?

What outcome is the employee seeking through the appeal (i.e. should the original decision be changed, and if so, what should the new decision be)?

On what date was the employee notified of the decision? (Appeal requests should be received within fourteen calendar days of the employee being notified of the decision.)

Include copies of any documents that might be relevant to the appeal.



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