Complaint Resolution

The Review of Actions (ROA) process enables Australian Public Service (APS) employees who are not members of the Senior Executive Service (SES), to seek redress when they believe that an action taken in relation to their employment by the Agency Head of an APS Agency, another APS employee or the Australian Public Service Commissioner under section 41B of the Public Service Act 1999 (the Act), was unfair or unreasonable.

Review processes for the APS give effect to the policy of the Australian Government that APS agencies should achieve and maintain workplaces that encourage productive and harmonious working relationships - employees' concerns are intended to be dealt with quickly, impartially and fairly. An application for review may be resolved by conciliation or mediation at any time before the review process is complete.

Contacts

You may lodge your completed application by e-mail to: complaint.resolution@defence.gov.au.

For further advice regarding the review process please contact Complaint Resolution (CR) by email to:

• complaint.resolution@defence.gov.au or
• 1800 DEFENCE (1800 333 362)

Who may lodge an application for Review?

The APS Values and Employment Principles of the Act require that a fair system of review be provided for APS employees. Under the Act employees are entitled to seek a review, in accordance with the Public Service Regulations 1999 (the Regulations) of any action that relates to their employment. 'Action' includes a refusal or failure to act. Please note that there are time limits for lodgement of an ROA application, please refer to 'Actions That Need Not Be Reviewed' below.

The ROA procedures apply to all non-SES APS employees, whether they are engaged as an ongoing employee, for a specified term or for the duration of a specified task or for duties that are irregular or intermittent.

If an APS employee makes an application for review, the affected employee ceases to be entitled to review if, after the application is made:

1. the employee ceases to be employed; or
2. the employee is promoted to an SES position.

Under the Regulations there are two types of ROA:

1. Applications for review of certain promotion decisions to be made to the Merit Protection Commissioner (MPC) for review by a Promotion Review Committee (PRC). PRC review procedures are provided in Division 5.2 of the Regulations.
2. Review of other 'APS actions'. This includes any action, or refusal or failure to act, which relates to the APS employees employment.

What can't you complain about?

Public Service Regulation 5.23(2) specifically exempts the following actions from review:

1. Action about policy, strategy, nature, scope, resources or direction of the APS or an Agency;
2. Action taken, or not taken, in accordance with a direction or reference given by a Minister under the Act or any other Act;
3. The giving of a direction by the Public Service Commissioner (PSC) under s 11, 15, or 36 of the Act;
4. Action taken, or not taken, for a special inquiry (by the PSC) under section 43 or an inquiry (by the MPC) under section 50 of the Act;
5. Action taken, or not taken, under section 72 of the Act (machinery of Government changes);
6. Action arising under any of the following Acts:
   • the Australian Security Intelligence Organization Act 1979
   • the Safety, Rehabilitation and Compensation Act 1988
   • the Superannuation Act 1976
   • the Superannuation Act 1990
   • the Superannuation Act 2005
7. Action relating to the engagement of an APS employee;
8. Action of a Promotion Review Committee;
9. Action relating to the promotion of an ongoing employee as an SES employee (whether or not the employee is already an SES employee);
10. Action that determines, under section 25 of the Act, duties of an APS employee, or the place or places where they are to be performed, unless the action involves:
    1. a reduction in classification; or
    2. a relocation to another place; or
    3. a promotion that meets the following criteria:
       1. the affected employee was an applicant for the promotion;
       2. the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules;
       3. there were serious defects in the selection process;
    4. or the assignment to an employee of duties that the employee could not reasonably be expected to perform;
11. or Action relating to a decision by an Agency Head, under Chapter 2 of the Commissioner's Directions, not to include the name of an employee in the Public Service Gazette.

Actions That Need Not Be Reviewed

Under Regulation 5.23(3) an action is not, or ceases to be, reviewable action if the Secretary (or delegate) conducting the review considers that the action should not be reviewable for any of the following reasons.

1. The application by the affected employee for review of the action is misconceived or lacking in substance.
2. The application by the affected employee for review of action is frivolous or vexatious.
3. The affected employee has previously applied for review of the action under the ROA provisions.
4. The affected employee has applied to have the action reviewed by a Promotion Review Committee.
5. The affected employee has applied, or could apply, to have the action reviewed by an external review body and review by that body would be more appropriate than review under the ROA provisions.
6. The affected employee does not have sufficient direct interest in review of the action.
7. Review, or further review, of the action is not otherwise justified in all the circumstances.
8. An action mentioned in an item of the table below is not, or ceases to be, reviewable action if a circumstance mentioned in the item applies.

Item, Action, and Circumstance

Item	Action	Circumstance
1	An application for primary review of an APS action made to an affected employee's Agency Head under sub-regulation 5.24(1)	The application is not made within 120 days of the APS action
2	An application for primary review of an APS action made to the Merit Protection Commissioner under paragraph 5.24(2)(a)	The application is not made within 60 days of the determination that the affected employee has breached the Code of Conduct
3	An application for primary review of an APS action made to the Merit Protection Commissioner under paragraph 5.24(2)(b)	The application is not made within 60 days of the sanction for breach of the Code of Conduct being imposed
4	An application for primary review of an APS action made to the Merit Protection Commissioner under subregulation 5.24(3)	The application is not made within 60 days of the APS action
5	An application made to the Merit Protection Commissioner for secondary review of an APS action if the Agency Head has told the affected employee under regulation 5.26 that the APS action is not reviewable	The application is not made within 60 days of the affected employee being told that the APS action is not reviewable
6	An application made to the Merit Protection Commissioner for secondary review of an APS action if: (a) the Agency Head has told the affected employee of the Agency Head's decision under subregulation 5.27(5); and (b) the affected employee is dissatisfied with the decision	The application is not made within 60 days of the affected employee being told of the Agency Head's decision
7	An application made to the Merit Protection Commissioner for secondary review of an APS action	The application for primary review of the action was an application referred to in item 1

However, an action mentioned in an item of the table above is reviewable action if the person who is, or would be, conducting the review considers that there are exceptional circumstances explaining the failure to make an application within the period in the item.

The Merit Protection Commissioner (MPC) may also decline to review a matter on the above grounds.

Before Lodging an Application

Before lodging an application, think about the outcome you want to achieve. You should consider what evidence exists to support your claims, particularly if you are about to make allegations against another person. You should also consider the implications your allegations may have for that person. While it is important that unfair or improper actions do not go undetected or unchallenged, the reputation of another person should not be put in jeopardy lightly or without any real evidence.

It is also important to remember that an application for ROA may not necessarily result in a change to, or reversal of, a decision or action. Sometimes the only achievable outcome is, for example, an apology or an undertaking that a similar matter would be handled differently in the future.

Initially, you should consider raising your concerns informally with your supervisor or manager. These people may be able to help you resolve the matter quickly without your having to make a formal application for review. Informal resolution of your problem will be more likely if you are clear and positive about what you want to change, and focus on the problem rather than on personalities.

While it is difficult to generalise, in most situations you should lodge a formal application for review only if you have been unsuccessful in attempting to resolve your dissatisfaction through informal means.

Lodging an Application

Applications for ROA must be in writing and must explain what is causing you concern and why. If a particular outcome is sought, you should clearly state the outcome sought. To assist you in completing your application for review, you may wish to utilise the complaint form template (Word).

The lodgement of an application for review will not cease (or suspend) the action complained about, while the review is being progressed. In other words, if your application relates to a direction from your supervisor or manager, you must still carry out that direction while your application is being considered, unless directed otherwise.

If your application for review relates to a finding that you have breached the APS Code of Conduct or a sanction imposed for breaching the Code of Conduct, you must lodge your application directly with the MPC. (If, however, your complaint is about the manner in which the Code of Conduct process was handled, you may submit your complaint to CR or appropriate ROA delegate for your region.)

Also, you may lodge your application directly with the MPC in the following circumstances:

The Secretary was personally or directly involved in the action that you are concerned with; or If you believe that it is not appropriate, because of the seriousness or sensitivity of the action, for the Secretary to deal with the application; or If you believe you are being victimised or harassed for having made a previous application for review of another action.

If you have a dispute pertaining to the Performance Feedback Assessment and Development Scheme (for example, over the outcome of a Performance Exchange or the content of a Performance Agreement) under the current DECA, you should raise the matter with your first and second-level supervisors in the first instance. If you remain dissatisfied with the outcome, you may consider lodging an ROA application.

You may lodge your completed application by e-mail to: complaint.resolution@defence.gov.au.

For further advice regarding the review process please contact Complaint Resolution (CR) by email to:

• complaint.resolution@defence.gov.au or
• 1800 DEFENCE (1800 333 362)

Action on receipt of a request for review

ROA must have due regard to procedural fairness, be conducted in private and be finished as quickly, and with as little formality, as a proper consideration of the matter allows.

When the delegate receives an application for review of an action, they may either form a view that the action is not reviewable, or should not be reviewed, having regard to the criteria specified in the legislation; refer the application to the MPC for review (in special circumstances); or conduct a review.

If the application does concern a reviewable action, then the delegate must review the action and make a determination. The delegate may conduct the review in any manner the delegate thinks fit. Where appropriate, the delegate may first suggest resolving your concerns through mediation or conciliation. If the matter cannot be resolved in this way, the delegate may arrange for the matter to be formally reviewed on the basis of your application alone or, if more information is required, for further enquiries to be made. The manner in which reviews are conducted may vary from case to case and, depending on the circumstances, may involve the appointment of someone to conduct interviews and take statements on behalf of the delegate. CR uses a panel of independent consultant investigators for this purpose.

Having conducted the review, the delegate may confirm the action; vary the action; set the action aside and substitute a new action; or take some other appropriate action. The result of the delegate's consideration will be sent to you in writing, telling you of any action to be taken as a result of the review, any decision made on your application and the reasons for that decision. You will also be advised of your right to apply to the MPC for secondary review of the action.

Former employees have a limited right to review of certain actions (relating to entitlements on separation) directly by the MPC.

Further Review

You may apply to the MPC for a secondary review of the matter if you have been advised that the action concerned is not reviewable under the ROA provisions, or should not be reviewed for one of the reasons discussed above, or if you are dissatisfied with the outcome of the delegate's review of the action. An application for MPC secondary review must be made within 60 days of the applicant being advised of the Defence delegates decision. Before applying you should give careful consideration to why you are not satisfied with the delegate's response to your application. Your application for a further review must be in writing and state briefly why the review is sought. It must be made through the delegate who decided your original application and be addressed to the MPC. Within 14 days of receiving your application for further review, the delegate must forward your application to the Australian Public Service Commission (APSC) together with any relevant documents and give you a copy of any documents given to the MPC.

There is no entitlement to secondary review by the Merit Protection Commissioner where you have applied for primary review outside the timeframes set out in regulation 5.23(4), subject to the exceptional circumstances provision in regulation 5.23(5).

Further information on the role and responsibilities of the MPC is available from the APSC web site.

Respondents

If you have been named as a respondent in an APS ROA, you are entitled to view, or be informed about, the allegations against you. Should you feel that you require legal assistance and wish to apply to receive this at Commonwealth expense, you will need to complete form AD268 Application for Indemnity and Legal Assistance at Commonweatlh Expense and submit it to:

Director of Litigation,
Defence Legal Division,
CP2-4-062,
PO Box 7911, CANBERRA BC ACT 2600

Further Information

Further details on the legislation can be obtained from the Public Service Act 1999 Section 33. Alternatively, contact the Directorate of Complaint Resolution or email complaint.resolution@defence.gov.au. (It should be noted that privacy cannot be guaranteed when using the email service.)

From 1 July 2014 responsibility for the Redress of Grievance (ROG) process will be transferred to the Inspector General of the Australian Defence Force (IGADF). ROGs will be managed by the Directorate of Military Redress and Review (DMRR) from within the IGADF.

The single Service Liaison Officers, formerly the single Service Team Leaders, will be the primary points of contact for matters concerning the ROG process.

Email correspondence should be sent to Military.Redress@defence.gov.au.

Email Advice Line

You may seek advice from Complaint Resolution staff by emailing Complaint.Resolution@defence.gov.au. It should be noted that privacy cannot be guaranteed when using this service.

Redress of Grievance

For all ROG matters contact the Directorate of Military Redress and Review, email: Military.Redress@defence.gov.au

APS Review of Actions

Further information on the processes involved in submitting a review of actions application may be obtained by contacting 1800 DEFENCE (1800 333 362).

Commonwealth and Defence Force Ombudsman

The Commonwealth Ombudsman investigates complaints from the general public about the administrative actions of Defence. The Defence Force Ombudsman investigates complaints from serving members, former members and the families of present and former Australian Defence Force members. Further advice or information is available from the Ombudsman website or by phoning 1300 395 776.

Australian Human Rights Commission

The Australian Human Rights Commission (the Commission) is responsible for conducting investigations into allegations of discrimination and human rights infringements. Further advice or information is available from the Commission's website at http://www.humanrights.gov.au or by phoning (02) 9284 9600.

Privacy

If your complaint relates to Privacy, you can visit the Defence Privacy Policy page in the first instance. For more information about the Defence Privacy Policy contact 1800 DEFENCE (1800 333 362). Alternatively, information on Privacy is available from the Office of the Australian Information Commissioner website.

Security

For APS employees, complaints concerning a decision to grant deny, vary or withdraw a security clearance must be made directly to the Secretary in accordance with Chapter 5 of the Complaints and Alternative Resolutions Manual (CARM) and the Review of Actions provisions of the Public Service Act 1999 . Members of the ADF should submit a Redress of Grievance to their commanding officer for review under Chapter 6 of the Complaints and Alternative Resolutions Manual (CARM). Further information can be obtained from Complaint Resolution (for APS employees) or the Directorate of Military Redress and Review (for ADF members).

Alternative Dispute Resolution

Alternative Dispute Resolution refers to processes where an impartial third party assists an individual or group involved in a conflict, to resolve the dispute or issue. Alternative Dispute Resolution is a tool for Commanders, Managers, Supervisors and individuals to deal with workplace conflict in restoring workplace relationships. It does not replace formal discipline processes but may be used in conjunction with disciplinary and/or administrative outcomes and complaint management practices. Further information and advice can be obtained by e-mail: ADR@defence.gov.au.

Code of Conduct

Information on breaches or potential breaches of the APS Code of Conduct is contained in the APS People Policy and Guidance.

Unacceptable Behaviour Matters

For unacceptable behaviour matters, call 1800 DEFENCE (333 362) which is currently staffed between 0700 - 2200 Monday - Friday, 0900 - 1700 Saturday (EST/AEDST) (expect national public holidays). The advice line provides a first level support and referral service for all Defence personnel. Callers can ask about their rights and options before taking action relating to any form of harassment or discrimination.

Inspector General

The Inspector General is responsible for the investigation of allegations of fraud and unethical behaviour and management of professional reporting (whistleblowing) within Defence.

Inspector General ADF

The role of the Inspector General ADF is to provide an avenue for complaints of unacceptable behaviour, including victimisation, abuse of authority, and avoidance of due process where chain of command considerations discourage recourse to normal avenues of complaint. The Directorate of Military Redress and Review administers the Redress of Grievance process for ADF members. For further information, contact IG ADF on 1800 688 042.

Legislation

• Defence Regulation 2016 Part 7 relates to Redresses of Grievance
• Racial Discrimination Act 1975
• Ombudsman Act 1976
• Sex Discrimination Act 1984
• Human Rights Commission Act 1986
• Privacy Act 1988
• Disability Discrimination Act 1992
• Public Service Act 1999
• Age Discrimination Act 2004

Associated Publications

• Review of Actions - Merit Protection Commissioner Brochure