OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT SECTION 59 GRIEVANCE PROCESSES Terry Lisson Director Promotion Appeals & Grievance Reviews 22 April 2010

s59(1) An employee may – (a) where he or she is aggrieved by the intention of the employee's Chief Executive Officer to terminate the employee's employment on probation – within 14 days; or (b) in any other case where the employee is aggrieved by his or her treatment in employment in the Public Sector– within 3 months after the action or decision by which he or she is aggrieved, request the Commissioner to review the action, intended action or decision complained of.

59(4) Subject to this Act, the Commissioner has the powers necessary and convenient to deal with a request under this section, including the same powers and obligations in relation to a review as an Appeal Board has under section 58 in relation to an appeal. (e.g. summon a person whose evidence is material, require a person to produce documents or records which appear to be material etc)

Commissioner has other powers under the Act s13(b ). promote, uphold and ensure adherence to the merit principle in selection of persons and promotion and transfer of employees s13(k). conduct inquiries and investigations into, and reviews of the management practices of Agencies s14. power to do all things necessary or convenient to be done in connection with or incidental to his functions s15. special powers of investigation

Matters outside of s59 process (e.g. applicants, former employees) “The Commissioner reminds [the Agency] that he is the employer, that he will become involved in agency employment practices as he sees fit, and that a more cooperative attitude is in order.”

s59 Grievances can only be about an employee’s treatment A s59 grievance must be about the employee’s treatment, not about other practices within the agency or the treatment of other employees: –another employee not being penalised appropriately –Mishandling of petty cash within the agency –Other employees being overpaid due to an error

Even though the wording of s59(1) appears to suggest an employee may ask the Commissioner to review any treatment in employment, the remedies available make it clear that the Commissioner’s function is to review the actions of agencies.

Remedies on Review s59(5) After reviewing a matter under this section the Commissioner may – (a) confirm the action, intended action or decision; or (b) direct the Chief Executive Officer of the Agency concerned to take or refrain from taking, as the case requires, a specified action.

Other provisions of Section 59 (5A) Commissioner may decline to review if, in the Commissioner’s opinion, the request for a review is frivolous or vexatious or has not been made in good faith. (6) For the purpose of a review of treatment resulting in termination or resignation an employee includes a former employee.

Reasons for Section 59 Grievances Reasons 2007 – – –10 to date Selection processes Management action or decision Application of procedures and policies 18 8 Bullying and harassment Agency Handling of Bullying & Harassment n/a 6 Application of conditions of service Personal conflicts within the workplace 42n/a Termination of probationary employment 105 Total handled

Grievances about Bullying and Harassment Generally speaking, because the Commissioner’s s59 power is to confirm the action of agencies or to direct them to take other action, it would be rare for the Commissioner to conduct a review into allegations by an individual employee about bullying and harassment. Commissioner’s role is to review the actions of agencies and to then either confirm the action or direct another.

Grievances about Selection Processes Promotion Appeals are only available in relation to selections that involve a promotion for an existing public servant and an applicant for whom selection would have been a promotion Which means that other selections – e.g. outside appointments, applicants or promotees already at level – have to rely on the s59 process for remedies if employees are aggrieved

Grievances about Selection The Commissioner has overturned several selection panel decisions when it is was apparent that the selection was not in accordance with the merit principle These situations can be very difficult to deal with, because the successful applicant has been advised that the selection is not subject to appeal. It then becomes the Agency’s problem of how to deal with the new employee.

Grievances about Selection (con.) In one case where the selection panel’s decision had been overturned, the successful applicant, who had been selected over an incumbent with good referee reports and performance reports, did not meet one of the essential selection criteria. In another the selection panel’s decision had not had due regard to the applicants’ “capacity to perform the duties having regard to their knowledge, skill, qualifications and experience, and potential for future development”.

Grievance Handling PA&GR has adopted a more flexible approach to grievance handling with emphasis on fast exchange of information and discussion, consultation, mediation and conciliation, and finding mutually acceptable resolutions.

Commissioner may refer the matter to the Agency 59(3) Where the Commissioner believes that an employee making a request under subsection (1) has not taken adequate steps to seek redress of the grievance within the relevant Agency, the Commissioner may refer the matter to the Chief Executive Officer of the Agency for consideration within the time specified by the Commissioner and the Commissioner need not review the matter under this section until that time has expired.

Employment Instruction 8 – Management of Grievances 4. Agencies shall establish written grievance settling procedures and employee’s grievances should be initially addressed by the agency’s internal process, so that only those that cannot be resolved within the agency are brought to the Commissioner’s attention.

Employment Instruction 8 – Employee’s Obligation 5. An employee must carry out an instruction about which he or she may be aggrieved until a review of the grievance has been finalised (except if unlawful, the Commissioner determines otherwise, or prevented by Work Health Act i.e. immediate risk of severe injury)

Employment Instruction 8 – Commissioner’s Review Commissioner shall request the CEO to provide a report on the circumstances giving rise to the grievance. The Commissioner may seek additional information.

Grievance Handling (con.) By “report” the PA&GR unit is not asking for an investigator’s report or a long and involved response. Just a general summary of what happened, and what the reasons were for the decision or action being reviewed. Expectation is that if a written response is required this would be provided within 2 to 3 weeks.

Where ever possible the ideal outcome will be for the Agency and the employee to arrive at a mutually acceptable resolution of the grievance. PA&GR unit can assist in this – facilitated discussions, suggestions for resolution based on advice of the Commissioner, mediation, conciliation, conflict coaching etc.

Outcomes of Grievances Commissioner’s Finding 2007–082008–092009–10 to date Agency action confirmed Resolved with PA&GR involvement Resolved within the agency 1375 Agency directed to take/refrain from taking action 1043 Declined to review 6165 Withdrawn On hand at the end of the period Total handled

Timeliness Section 59 stipulates that the Commissioner shall conduct a review within 14 days for review of termination on probation, or within 3 months of receiving a grievance. (or such longer period as, in the Commissioner’s opinion, the circumstances require.) For reviews of termination on probation Agency could speed process up by advising PA&GR of intention to terminate sooner than just 14 days before the end of probationary period

Timeliness In the average time taken to finalise a grievance review was 5.5 months In this time was reduced to 3.5 months (2.5 months for matters received since January 2008) For matters received so far this financial year the average resolution time is 50 days (1.6 months)

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Please feel free to contact: Terry Lisson Promotion Appeals & Grievance Review