Operating Parameters for Appeals Panel by dnB551

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									   OPERATING
 PARAMETERS FOR
  APPEAL PANELS

Public Sector Management and Industrial
             Relations Group


     CHIEF MINISTER’S DEPARTMENT


            February 2006
                   Operating Parameters for Appeal Panels

INTRODUCTION

1.   This document provides general guidance to members of Appeal Panels
     established under Agency Certified Agreements.

2.   The document primarily supports the operation of Appeal Panels
     established under the Template Agreement of Core Conditions (Section M
     of the Agreement), although agencies could adapt these principles to
     panels established under occupational specific certified agreements (see
     paragraphs 11 and 12).

            Note: The Appeal Panel process is separate to Internal Review
             procedures (Section L of the Template Agreement).
3.   The document provides:

            background information on the ACTPS legislative employment
             framework;

            the scope and establishment of the Appeal Panel;

            members’ role and duties; and

            guidance to Panel members on consideration of appeals and
             procedures.
4.   This document is not intended to replace relevant legislative provisions.
     Panel members must read this document in conjunction with relevant
     legislative provisions (see further paragraph 6).

5.   This document uses hyperlinks to assist you to view referenced material
     quickly; (a hyperlink looks like this: hyperlink). If you are viewing this
     document in hardcopy form there is a list of references at Attachment D.


ACTPS LEGISLATIVE FRAMEWORK

6.   The main elements of the ACTPS legislative framework include:
        Public Sector Management Act 1994 and Management Standards
         (PDF file);

        Agency Certified Agreements:
                o Template Agreement comprising Part 1: Common Core
                  Conditions and Part 2: Agency specific conditions; and
                o Non Template Agreements (occupational specific
                  agreements); and
        Awards.


7.   The Human Rights Act 2004 (ACT) requires that all ACT legislation,
     including the PSM Act, must be interpreted consistently with human

                                                                                 2
      rights as far as possible. Relevant human rights include recognition and
      equality before the law, protection of the family, privacy, and taking
      part in public life (having equal access to appointment in the public
      service).

8.    Other laws such as those dealing with discrimination, occupational
      health and safety, workers compensation and privacy also regulate
      aspects of the legislative framework.


Public Sector Management Act and Management Standards

9.    The Public Sector Management Act 1994 (the PSM Act) establishes the
      ACTPS and sets out general provisions (e.g. values and principles) and
      primary employment issues including categories of employment,
      promotion, transfer, appeal and review mechanisms and discipline.

10.   The PSM Act is supported by the Public Sector Management Standards
      (PDF file) (subordinate law). The Standards must be consistent with the
      Act. If any inconsistency arises, the PSM Act prevails.

Agency Certified Agreements

11.   Certified Agreements are made under the Commonwealth Workplace
      Relations Act 1996 (the WR Act). While ACTPS certified agreements are
      agency based, government policy requires that agencies adopt a
      centrally negotiated Template Agreement as part of their agency
      agreement. The Template Agreement forms Part One of the agency
      Certified Agreement and includes a set of core conditions for staff in the
      administrative, professional, technical, general service officer and
      ambulance classifications. Part Two of the agency agreement includes
      agency specific conditions.

12.   Occupational specific agreements, which cover nurses, doctors, teachers
      and fire-fighters are not required by government policy to incorporate
      the Template into their agency agreement but may adopt all or part of
      the Template Agreement.

13.   Any Australian Workplace Agreements (AWAs) are also made under the
      Commonwealth WR Act.


Awards
14.   Awards are made under the WR Act. Under that Act, awards can only
      contain specified allowable matters and are limited to minimum
      entitlements.



Legislative Framework Hierarchy


15.   The PSM Act and Management Standards (PDF file) are subordinate to
      Certified Agreements and Awards. This is because Certified Agreements
                                                                                 3
      and Awards are made under Commonwealth laws they override
      inconsistent ACT laws.
16.   The following diagram represents a basic view of the employment
      framework.


                    Workplace Agreements (including current Certified
                    Agreements and Australian Workplace Agreements)

                                                   
                                  (Fair Pay Commission Standards)1
                                                   
                                               Awards

                                                   
                              Public Sector Management Act 1994

                                                   
                          Public Sector Management Standards 2006



17.   The framework can be complicated and often requires that all of the
      above sources are consulted.

18.   For those appeals under the Template Agreement (see paragraph 19),
      the Agreement deals comprehensively with those appeal matters. This is
      because the Template Agreement overrides the PSM Act and Standards
      (PDF file). As such, the agreement is the primary source of authority for
      promotion/higher duties, discipline, under-performance and eligibility
      benefits reviews.


ESTABLISHMENT and SCOPE OF APPEAL PANEL
19.   The Appeal Panel is established under clause 90.3, Section M of the
      Agency Certified Agreement (Template Agreement of Core Conditions).

20.   Under clause 88.2 of the Template Agreement, the Appeal Panel is able
      to review the following matters:

            Promotion or temporary performance decisions below SOG C level
             (for periods more than six months) affecting the employee where
             the employee was an applicant (excluding decisions by joint
             selection committees);

            Decisions arising from disciplinary action under Section K of the
             Template Agreement, except a decision to terminate a person’s
             employment;

1
 Until the first Fair Pay Commission determination, expected in Spring 2006, the full effect of the Fair
Pay Commission Standards in relation to the legislative employment framework is unknown.
                                                                                                       4
             Decisions arising from under-performance action under Section J
              of the Template Agreement, except a decision to terminate a
              person’s employment; and

             Decisions taken in relation to employees’ eligibility for benefits
              under clauses 100 to 102 of the Template Agreement, the amount
              of such benefits, the amount payable by way of income
              maintenance under clause 104, and the giving of an involuntary
              notice of redundancy or notice of reduction in classification under
              clauses 102 and 103.
PANEL MEMBERSHIP
21.   The Appeal Panel comprises:

             A Chairperson drawn from a list approved by the Commissioner for
              Public Administration, in consultation with unions2. The
              Chairperson is chosen from the Commissioner’s list on a rotational
              basis, unless a conflict of interest is identified or the chosen
              person is unavailable. The Commissioner has approved these
              persons based on their experience in conducting employment
              related reviews.

             Employer nominee. The employer should nominate a person who
              has appropriate experience relevant to the appeal matter, and has
              an understanding of broader legislative, management, human
              resource policy and practices.

             A person nominated by the relevant union. The relevant union
              should nominate a person who has appropriate expertise relevant
              to the appeal matter and an understanding of the
              workplace/industry.

22.   The Template Agreement prohibits a person from being a member of
      the Panel if that person was involved in the decision that is the
      subject of the application.3


The Convenor of Appeal Panels
23.   The Chief Executive must nominate an employee in the agency to be the
      Convenor of Appeal Panels. The Convenor supports the Panel, with
      duties including:

             setting up the Appeal Panel in a timely manner;

             providing existing evidence on which the original decision is based
              to the Panel members, appellant and employer in a timely
              manner, including any additional evidence submitted during the
              course of proceedings. The Convenor should keep create and
              maintain appropriate records (see Attachment B) in providing
              evidence to the Panel.

2
    For a promotion appeal, agreement of the unions(s) is required.
3
    See clause 90.4 of the Template Agreement.
                                                                                5
            undertaking administrative arrangements, as required by the
             Chair, for meetings (e.g. venues, liasing with parties).

            providing advice on matters of procedure and policy related to the
             legislative employment framework, at the request of the Chair.


24.   The Template Agreement provides that the Convenor will only be a
      member of the Panel if the appellant4 agrees. However, best practice
      suggests that if a Convenor is also a Panel member, the Chief Executive
      must be satisfied that there are procedures in place to ensure a clear
      delineation between the roles of the Convenor and the Panel member.

25.   The Convenor has a duty to the Panel, and in general is not subject to
      any direction from any other person about matters pertaining to the
      Appeal Panel process other than the Chairperson. This is because Appeal
      Panel proceedings are private and independent processes designed to
      promote accountable and transparent decision making in the ACTPS. Any
      direction by another person that could influence (or even perceived) to
      influence the process would not be a reasonable direction under the
      Code of Ethics set in the PSM Act, and could compromise the integrity of
      the process.

26.   This does not prevent the Convenor from seeking advice from staff in
      their agency about correct procedures and processes to support the
      Panel. The Convenor will need to consider whether implementing a
      direction could compromise the integrity of the process.


MEMBERS’ ROLE AND DUTY TO APPEAL PANEL
27.   Members of the Panel have a primary duty to the Appeal Panel.
28.   All Panel Members must act in all Panel proceedings with fairness, equity
      and impartiality, independent of other interests, including those from
      the body that has nominated them, for example, the employer or union.
      If a member feels pressure from any body or person they should declare
      it, in writing, to the chairperson.

29.   The chairperson may seek advice or assistance from the Public Sector
      Management Group (see paragraph 68) if they require advice about
      conflicts of interest and related issues, and are unable to resolve the
      issue at departmental level.


Impartiality and Code of Ethics
30.   Members should consider before they accept a role on the Panel whether
      they are able to bring an unbiased and independent mind to proceedings.


4
  Applicant is the term used in agency certified agreements. For consistency in the Guide, we have used
the term appellant.
                                                                                                     6
      If not, or if they are in doubt, the nominee should decline the
      nomination.
31.   There are often issues where members will know, or be aware of, one or
      more persons involved in the matter (e.g. a witness). This does not
      automatically prevent the person from participating on the Panel but
      each case should be considered on its individual circumstances.

32.   Initially, questions of possible bias or conflict are for members’ own
      judgement and conscience. If the person is in doubt, this should be
      brought to the attention, and discussed with the chairperson. If the
      chairperson has concerns (that cannot be resolved at department level),
      they should seek advice from Public Sector Management Group (see
      paragraph 68).

33.   Overall, if members consider that the conflict of interest (e.g. current or
      past association with a person involved in the appeal) inhibits the person
      from bringing an independent mind to the case, they should withdraw
      from the Panel, and advise the Convenor immediately so that a
      replacement may be found. This conflict of interest could be a real,
      apparent or perceived.

34.   Before proceedings commence, Panel members should complete a
      Declaration of Impartiality and Code of Ethics (Attachment C) to declare
      they have no conflicts.

35.   For those employees engaged under the PSM Act, the Code of Ethics
      (section 9 of the PSM Act) requires employees to declare any conflicts of
      interests (among other ethical duties) in relation to their duties, in this
      case serving on the Panel.

36.   Members should also be aware of their duty to ensure that while
      proceedings are in progress no perceptions of conflict are created.



Confidentiality
37.   The scope of discussion needed to make a recommendation in any appeal
      will vary according to each case. However, it is essential that all
      discussions remain strictly confidential.

38.   Maintaining confidentiality:

            minimises the risk of harm to relevant parties;

            reduces the opportunity for evidence to become contaminated;

            encourages witnesses to be forthcoming with evidence; and

            protects Panel members from potential legal action (e.g.
             defamation).
39.   The Terms of Reference (see paragraph 50) and written recommendation
      of the Panel should only be released to the appellant and decision maker
      (i.e. it is not otherwise a public document, unless there is a legal
                                                                             7
      requirement to release). In the case of a promotion appeal, the Terms
      of Reference should also be provided to the person who is being
      appealed against.
40.   The Panel must also ensure that any other persons who are involved in
      the appeal understand their obligation to keep the details of the appeal
      confidential (e.g. witnesses in gathering evidence).




                                                                                 8
CONDUCT OF AN APPEAL

41.   The procedure for considering an appeal is within the discretion of the
      Panel, but subject to the Template Agreement, and in particular the
      provision of natural justice and procedural fairness.

42.   Clause 91.1 of the Template Agreement sets outs:
         In considering an application, the Appeal Panel must act in
         accordance with the principles of natural justice and procedural
         fairness. Proceedings of the Appeal Panel are to be conducted with
         as little formality and as quickly as practicable consistent with a fair
         and proper consideration of the issues.

43.   The Panel should avoid an overly legalistic approach. The appellant or
      other parties may bring to a hearing a union representative, a friend or
      colleague for the purposes of support. Legal representation may appear
      only on behalf of parties, with the consent of the Panel (clause 91.2 of
      the Template Agreement). The Panel should consider each application
      for legal representation on its merits.

44.   Under clause 91.3 of the Template Agreement, the Panel has the power
      not to investigate the application or if it has commenced investigating
      the application, not proceed further, if, in the Panel’s opinion:

                     the application is frivolous, vexatious, or not made in
                      good faith;

                     the employee may apply to another person or authority
                      about the application and it would be more appropriate
                      for it to deal with the action; or

                     an investigation or further investigation of the application
                      is not warranted.
45.   While the Panel has responsibility for its own procedures, members
      should, in considering any procedural matter, keep in mind:

            the stresses upon parties to an appeal;

            time requirements and the time that needs to be allocated to the
             matter;

            the desirability of informality;

            the need for the recommendation to be made to the decision
             maker in a timely manner after the application (consistent with a
             fair and proper consideration of the issues); and

            any other matter that the Panel considers relevant to promoting a
             fair and transparent process.
46.   The Panel should not institute any process that may operate directly or
      indirectly to discriminate against relevant parties to the appeal.


                                                                                 9
47.   Panel proceedings are to be conducted in private.


CONSIDERATION OF THE APPEAL
48.   Clause 91 of the Template Agreement sets out the general powers and
      the role of the Appeal Panel. While the Panel may conduct the
      proceedings as it sees fit, within the limits of the Template Agreement
      and where natural justice/procedural fairness is afforded, the Panel may
      wish to consider the options detailed in paragraphs 52 to 63 in making a
      recommendation to the decision maker.

49.   The purpose of the Panel is to make a recommendation to the decision
      maker on whether the decision/action is fair and equitable in all of the
      circumstances, and that administrative law requirements for decision-
      making were complied with, for example, that natural justice and
      procedural fairness were afforded. However, it must also be kept in
      mind that the procedures will differ according to the type of appeal
      given the scope of appeals includes (see further paragraph 19):

            Promotion or temporary performance decisions (for periods more
             than six months) for promotions below SOC C level;

            Decisions arising from disciplinary action (excluding termination);

            Decisions arising from under-performance action (excluding
             termination); and

            Decisions taken in relation to employee eligibility for benefits
             under clauses 100 to 102, the amount of such benefits, the
             amount payable by way of income maintenance under clause 104,
             and the giving of an involuntary notice of redundancy or notice of
             reduction in classification under clauses 102 and 103.


General matters
50.   The Panel should develop Terms of Reference to ensure it is clear how
      the Panel will consider the appeal. The Terms of Reference should
      include:

            Process/method for consideration of the appeal;

            Timeframes, including ensuring that the appellant and employer
             have sufficient time to respond after reviewing the other parties’
             submissions; and

            Any other relevant matter.
51.   The Terms of Reference should be circulated to the appellant and
      employer before the appeal is considered. In the case of a promotion
      appeal, the Terms of Reference should also be provided to the person
      who is being appealed against.

                                                                               10
Process/Method

52.   The Panel will need to determine the approach to deal with the appeal.
      The Panel may make recommendations based on the papers before the
      Panel. If the Panel does not have all of the relevant material before it,
      the Panel may seek statements or invite public servants to be
      interviewed in the course of considerations.

53.   Panel members are expected to draw upon their own general knowledge
      and experience, to assist in identifying the issues of the appeal, analyse
      and assess the issues to form an opinion on the merits of the information
      before them.

54.   To assist Panel members with fact finding, Attachment B provides
      guidance on gathering evidence, taking oral statements and securing
      records/information. It should be noted that while the rules of evidence
      do not apply to the appeal process, it is useful for Panel members to
      understand the basic principles so that the evidence is the best
      available, and the record of appeal can withstand scrutiny if the appeal
      is later subject to legal proceedings.

55.   It is expected that Panel members will familiarise themselves with
      Section M of the Template Agreement and any other legislative
      provisions relating to the appeal.


Promotion/Temporary performance
56.   When considering promotion or temporary performance appeals, the only
      ground on which the Panel may review the decision is that the appellant
      would be more efficient in performing the duties of the position than the
      person promoted or selected for higher duties. For these appeals the
      Panel may not review procedural matters, as this review right is provided
      under Internal review procedures (clause 84.2 of Section L- Template
      Agreement).
57.   In considering the ground of greater efficiency, the Panel should have
      regard to:

            the abilities, qualifications, experience, standard of work
             performance and personal qualities of each relevant party5 to the
             appeal to the extent that the Panel considers they are relevant to
             the performing the duties of that position;

            if the Chief Executive or delegate who made the promotion had
             regard to, the potential for further career development, relevant
             to the position, in making the merit based decision; and

            any other matter the Panel considers relevant.



5
 Relevant parties include the person selected for the promotion and any appellants, where
they applied for that position.
                                                                                       11
58.   If the Panel considers that the person promoted/selected for higher
      duties is entitled to the promotion/transfer on merit, the Panel has the
      power to confirm that decision. The Panel must also notify the appellant
      of this decision and provide written reasons for the decision.

59.   However, if the Panel believes that another decision is appropriate (e.g.
      promotion of another applicant or re-commencement of the process), it
      will make those recommendations to the Chief Executive (or the
      Commissioner if the Chief Executive made the original
      promotion/selection decision).
60.   The Panel will need to ensure that all other matters in Section M of the
      Template Agreement are complied with during Panel proceedings.


Discipline and Under-Performance

61.   When dealing with appeals relating to discipline and under-performance,
      including the penalty imposed or action taken:

            The Panel may need to decide on the facts of the appeal first; and

            Once the Panel has made a decision on the facts (see
             Attachment B for gathering evidence), and is in position to provide
             a recommendation, the Panel should have due regard to the
             matters at Attachment A.

62.   The Panel will need to ensure that all other matters in Section M of the
      Template Agreement are complied with during Panel proceedings.


Employee eligibility for benefits relating to redundancy
63.   When dealing with appeals under the redeployment and redundancy
      provisions, the Panel may be required to consider:

            An employee’s eligibility to benefits in relation to voluntary
             redundancy and the amount of such benefits - Appeals in this area
             may involve, for example, the length of the notice period
             (whether 4 weeks or 5 weeks), the number of years of continuous
             service (provisions for recognition of previous employment for
             redundancy purposes are set out in Part 3.7 (PDF file)), calculations
             in relation to shiftloading or composite salaries and calculations in
             relation to the inclusion of other allowances;

            The amount payable to an employee by way of income
             maintenance - Appeals in this area may involve the maintenance
             of income at the rate received while performing higher duties;

            The giving of an involuntary notice of redundancy or notice of
             reduction in classification - Appeals in this area may involve
             whether or not involuntary notices of redundancy should be given
             if the employee does not wish to accept a transfer to another
             position; or whether or not the notice of reduction in
                                                                                12
              classification should be given if the employee has not applied for
              at least 3 separate positions for which they could be reasonably
              expected to be qualified to perform.


PROTECTION OF APPEAL PANEL MEMBERS
64.   Legal action against Panel members who conduct themselves in
      accordance with the Template Agreement and this Guide is unlikely.

65.   However, where a Panel member is engaged under the PSM Act6, the
      Territory indemnifies these persons for action/omissions made while
      involved in Panel proceedings, provided the person acts in good faith
      within the powers conferred by the position. This indemnity covers
      public liability, professional indemnity and directors and officers’ risks,
      where they act in good faith.

66.   This Territory indemnity does not extend to a person nominated by the
      unions, unless they are employed in the ACTPS (i.e. engaged under the
      PSM Act).


FURTHER INFORMATION

67.   Panel Members should discuss any issues with the Convenor of the Panel.
68.   If the Convenor is unable to assist, the Convenor may seek advice from:

             Senior Policy Advisor(s), Public Sector Management and Industrial
              Relations Group, on:

                      (02) 6207 1255; or

                      (02) 6205 0307.
69.   In some circumstances, it may be appropriate for the Convenor to seek
      legal advice from the Government Solicitor’s Office.


ACKNOWLEDGEMENTS
70.   The ACT Public Service acknowledges the assistance of publications
      developed by the Northern Territory, NSW Government and NSW
      Ombudsman’s Office in the development of this Guide.




6
    This includes the Chairperson and employer nominee.
                                                                                13
                                                              ATTACHMENT A

Sufficient evidence to constitute a finding of misconduct/under-
performance

1. The Panel must be satisfied that there is sufficient evidence, on the
   balance of probabilities, that the employee is liable to
   disciplinary/under-performance action.

2. The balance of probabilities is the civil standard of proof that applies to
   administrative investigations. This is a lower standard of proof than
   required in criminal matters, where allegations must be proved beyond
   reasonable doubt. Balance of probabilities essentially means that in
   order to be proved, it must be more probable than not that the
   allegations are made out.

3. The strength of evidence required to prove an allegation on the balance
   of probabilities may vary according to the seriousness of the issues
   involved. In the case of Briginshaw v Briginshaw (1938) 60 CLR 336,
   Dixon J remarked:

      The seriousness of an allegation made, the inherent unlikelihood of
      an occurrence of a given description, or the gravity of the
      consequences flowing from a particular finding are considerations
      which must affect the answer to the questions whether the issue has
      been proved.

4. It is important that the standard of proof dictated in Briginshaw is not
   reduced by a decision maker erroneously taking into account irrelevant
   considerations. Ultimately, decisions often turn on one person’s word
   against another’s. In deciding which witness is the most creditable a
   range of factors should be considered, including the demeanour of
   witnesses, the cooperation they have shown, their possible motives and
   any inconsistencies. Past behaviour may be taken into account but care
   must be taken. The criteria that must be satisfied before evidence of
   past behaviour should be permitted to influence the finding is where it is
   identical, relevant, recent and/or serious.

Provision of natural justice/procedural fairness

5. In all of the circumstances, it must be considered whether procedural
   fairness was afforded to the appellant (and where relevant, other
   parties).

6. Natural justice and procedural fairness are terms used interchangeably.
   Any decision affecting an individual that has been made without
   affording that individual procedural fairness is liable to be challenged
   and set aside.

7. Procedural fairness does not require the application of fixed rules but
   requires that the procedure adopted by the decision maker be fair in all
   of the circumstances. The principles of procedural fairness include
   providing a fair hearing, not being biased and acting on the basis of

                                                                             14
                                                              ATTACHMENT A

   logically probative evidence (i.e. that the evidence is relevant to the
   facts in issue).

Fair hearing
8. To ensure a fair hearing:
          inform persons whose interests may be affected by allegations
             against them (i.e. a decision could be taken against them) or
             grounds for adverse comments in respect of them. This allows
             a person to respond to allegations.
          provide persons with a reasonable opportunity to put their
             case. This period will depend on the circumstances, including
             the relative urgency of the relevant decision and the
             seriousness of the matters to be considered. If it is clear that
             a person is not able to respond properly without more time or
             further information, this should be provided, if possible (e.g.
             within legislative framework and taking into account the affect
             on other parties). This may also need to occur if new evidence
             will be used after the initial opportunity to respond;
          hear all parties to a matter;
          make reasonable inquiries and consider all matters put to them
             in reaching a recommendation/decision; and
          must not to give weight to irrelevant matters in reaching a
             decision.

Unbiased decision maker
9. Procedural fairness requires that no person decide a case in which they
   have a direct interest. A good test is whether a fair-minded observer,
   aware of the facts, would have a reasonable apprehension that the
   decision maker will not bring an impartial or unprejudiced mind to the
   issue.

10. This does not prevent a decision maker who is required to form a
    preliminary view (e.g. whether or not to investigate possible misconduct)
    from making the decision. If the decision maker, because of their
    position, has some knowledge of the individual involved, it will not be a
    breach for that person to make the relevant decisions, if the
    circumstances show that the person has been impartial in determining
    the particular matter.

Severity of the Penalty
11. It is essential that the type of penalty reflect the severity of the breach
    of conduct or the level of under-performance. Fairness and equity
    require that the penalty be appropriate to the conduct but also that all
    relevant factors are taken into consideration in determining the penalty.

12. The following circumstances should be taken into consideration when
    determining the penalty. For the most part, these factors are more
    relevant to disciplinary cases but some of the principles can be applied
    to under-performance actions:

          o The type of conduct
                                                                               15
                                                ATTACHMENT A

o The seriousness and degree of conduct;
o The circumstances of the conduct;
o Whether there is previous history of that same/similar
  conduct;
o Previous advice/counselling in relation to the same/similar
  conduct;
o Whether the employee is aware of the required standard of
  behaviour that has been breached and the consequences of
  breaching it;
o The employee’s length and record of services;
o The employee’s personal circumstances;
o The nature of employment and the employee’s duties;
o Custom and practice in the workplace and industry;
o Whether there is ongoing risk to the public, clients or work
  colleagues;
o Whether the effectiveness of the department and the public
  service, in general, is compromised by continued employment;
o The personal circumstances of any victim of the conduct;
o Any injury, loss or damage resulting from the conduct;
o The degree to which the employee has shown remorse for the
  conduct;
o The co-operation of the employee during the investigation; and
o Any other relevant matter or mitigating circumstances.




                                                             16
                                                             ATTACHMENT B



Gathering evidence
1. Gathering evidence is the process of effectively and efficiently obtaining
   information relevant to the appeal.

2. To determine the facts of the appeal, the Panel will need to access the
   evidence obtained during the investigation or earlier process that led to
   the appeal. The Convenor will provide this evidence to Panel.

3. In addition, the Panel may need to seek its own evidence relevant to the
   appeal, e.g. seeking oral statements from witnesses in order to
   determine the facts of the appeal.

4. To assist the Panel in gathering evidence, guidance is provided on:
      General information about evidence and a basic overview of the rules
       of evidence. While the rules of evidence do not apply to
       administrative appeals, it is useful for Panel members to
       understand the basic principles so that the evidence is the best
       available, and the record of appeal can withstand scrutiny if the
       appeal is later subject to legal proceedings;
      Obtaining oral evidence, which is one of the most difficult forms of
       evidence to obtain; and
      Securing documentary evidence and information.

Evidence
5. The law of evidence essentially operates by focusing on the facts or
   matters in issue. The fundamental principle of evidence is that all
   evidence must be relevant to the facts or matters in issue.

6. Relevant evidence is evidence, which, if accepted, could rationally
   affect (either directly or indirectly) the assessment of probability of the
   existence of a fact in issue. Relevance is essentially tested by logical
   reasoning. During gathering evidence, a lot of irrelevant material will be
   obtained, and care must be taken to select evidence that rationally
   affects the facts in issue.

7. Evidence can be direct or circumstantial, depending on how it is applied
   to the relevant facts in issue. Direct evidence is evidence of what a
   person saw, heard, smelt, or tasted. Circumstantial evidence is
   evidence from which facts may be inferred. An inference is a conclusion
   that possesses some degree of probability, which will depend on the
   accuracy of the premises from which the inference is drawn.

8. The main sources of evidence are:
       Oral evidence (recollections);
       Documentary evidence (records);
       Expert evidence (technical advice); and
       Site inspection.



                                                                              17
                                                              ATTACHMENT B

9. In most cases, (in order to determine the facts of the appeal), the
   collection of oral and documentary evidence will be the primary forms of
   evidence, however in some cases expert evidence may be required.

10. Any evidence must be relevant, in that it is able affect to the facts in
    issue. Once evidence is admitted as relevant, it is then necessary to
    consider the weight that will be given to that piece of evidence. For
    example direct evidence would carry more weight than circumstantial
    evidence. The reliability of the evidence is also an important factor in
    determining weight.

11. It should be noted that not all relevant evidence is admissible. The law
    for various reasons excludes certain types of evidence (e.g. it would be
    unfair; in that it would be more prejudicial to the defendant than how
    useful the evidence would be in proving the facts of the matter).

Overview of rules of evidence

Relevance
12. The first premise is that evidence must be relevant if it is to be admitted
    (see further paragraphs 5 and 6 of this Attachment).

Hearsay evidence
13. There is a general rule against hearsay evidence and a number of
    exceptions to the rule. Generally, hearsay includes ‘evidence based on
    what has been reported to a witness by others, rather than what he or
    she had heard him or herself’. However, hearsay should not be
    discounted as a form of evidence, as interviewing persons can lead to
    other relevant witnesses. Fundamentally, what hearsay means is that
    evidence should be obtained at the source, rather than relying on what
    others say.

14. Hearsay evidence can carry less weight than direct evidence, and if the
    primary source is available, it should be used in preference to hearsay
    evidence. If it is not possible to obtain direct evidence, this should be
    recorded in the report.

15. The main exceptions to the hearsay rule are admissions and business
    records (including records of the Agency).

Opinion evidence
16. Generally, witness statements should not contain expressions of opinion
    about something or someone unless the witness is an expert who has
    been requested to provide expert evidence. There are some exceptions
    to this general rule and opinion evidence may be admissible if based on
    what a person saw, heard or perceived, and it is necessary to convey an
    adequate understanding of the witness’s perception of the matter. The
    evidence may also be admissible if the witness has acquired considerable
    practical knowledge about a matter through life experience.



                                                                            18
                                                               ATTACHMENT B

Cautioning
17. If during the course of fact finding, evidence is obtained which
    establishes a prima facie case for a criminal offence against a person
    being interviewed, a caution should be administered to the person that
    he or she does not have to do anything, but anything said or done may be
    used in evidence.

18. Evidence that is obtained in the absence of a caution is considered to be
    evidence that has been improperly obtained, and as a general rule, will
    be excluded from court proceedings.


Obtaining oral evidence
19. Oral evidence is the most difficult form of evidence to obtain, since it is
    subject to the human condition. Witness recall is imperfect, every
    witness responds differently to the interview process and every witness’s
    unique psychology is brought to bear in the interview situation.

20. An interviewer should possess a good knowledge of the matters at hand
    and any relevant agency material (e.g. policies, practices and
    procedures), good analytical, effective communication skills, good sense
    and judgment, professionalism and integrity.

21. It is important to interview all witnesses to obtain all relevant facts, and
    as a general rule, if a person is subject to a complaint, they should be
    interviewed last.

Steps to a successful interview

   a. Preparation/Planing
             i. Set objectives and an agenda for the interview. Consider
                the timing and location of the interview. Privacy is a major
                psychological factor which contributes to the success of the
                interview, and the environment should be free from
                distraction.
            ii. Set questions or lines of questioning before the interview to
                 use as a checklist to ensure all relevant issues are covered.
                 Of course, an interviewer may need to deviate from the list
                 to ask follow-up questions and take account of unexpected
                 evidence.
           iii. The need for an interpreter or other special arrangements
                 should be determined in advance.

   b. Conduct of interview
          iv. The interviewer should act fairly, reasonably and in an
                impartial manner.
          v. The approach adopted by the interview will largely depend
               on the circumstances and to a large extent should be
               tailored to suit a witness.
          vi. If a witness is uncooperative, there is little action the
               interviewer can take, unless some legal authority exists.

                                                                              19
                                                             ATTACHMENT B

   c. Interview techniques
            vii. Face-to-face interviewing is the primary method for
                 receiving evidence from a witness. Alternatives include
                 telephone interviews and written requests for information
                 but these methods should be used sparingly.
            viii. Interviewers can use open, closed, strategic, hypothetical,
                 provocative and assertive lines of questioning. Generally, an
                 interview should commence using open questions to
                 encourage narrative responses. Closed questions should
                 only be used to confirm matters after the witness has told
                 their story.

   d. Recording
           ix. It is important that the interview is recorded accurately.
               This can be achieved by tape recording, by preparing a
               record of interview or by creating a witness statement. The
               manner of recording will largely depend on the purpose for
               which the record is being taken. The more likely that the
               record will be used as evidence in formal proceedings, the
               more important that a full transcript or fully signed witness
               statement is obtained. The interviewer should inform the
               witness of the method of recording before the interview
               commences, and also provide the interviewees with an
               opportunity to comment on the interview report.

   e. Third Parties
            x. Generally witnesses should be permitted to have a third
                 party present for the purposes of support. The interviewer
                 needs to make clear that the third party is an observer and
                 may not take part in discussions and ensure that they
                 agree to keep the interview confidential. Legal
                 representation may only be allowed with the approval of
                 the Panel (see paragraph 41).

Securing evidence/information
22. It is important to ensure that all evidence/information is obtained and
    stored appropriately.

Managing documents
23. In providing evidence to the Panel, the Convenor should create records
    to show where the documents are to be taken (i.e. location and storage
    facility), including how they are to be stored.

24. Original documents should be taken, as they often show information that
    does not appear in photocopies (i.e. pencil notes in the margin).
    Photocopies should be taken and used during the course of the appeal.
    The original document should be stored in a locked facility.

25. Where appropriate, the authenticity of documents should be confirmed
    with the person indicated as being the author. Where documents are


                                                                              20
                                                            ATTACHMENT B

   taken, a record/receipt should be provided, together with the contact
   details of the Convenor, in case anyone needs to access the documents.

Recording and storing information gathered during the appeal
26. Panel members should take notes of all discussions, phone calls and
    interviews. These notes should be legible, include relevant dates/times,
    clearly identify the author of the note, and contain a file reference.

27. These records should be secured in a lockable cabinet. Documents
    should be stored to retain their original condition. Avoid storing
    documents in plastic bags because they sweat and could become
    damaged.

28. Records should also be maintained/stored in accordance with the
    Territory Records Act 2002.




                                                                          21
                                                                   ATTACHMENT C

                                  APPEAL PANEL

           DECLARATION OF IMPARTIALITY AND CODE OF ETHICS

The purpose of this document is to facilitate proper, fair and efficient operation of
Appeal Panels constituted under Section M of the Template Agreement of Core
Conditions. The [Agency], on advice of the Public Sector Management Group,
requires all persons nominated as members of Appeal Panels to make this
declaration. If any member feels that they are unable to comply with this
requirement, they should discuss the matter with other members of the Panel and
their nominating body to determine whether or not, in all of the circumstances,
they should decline nomination to the Panel.

I,…………………………………………………………………………………..(full name)
of …………………………………………………………………………………(work/ other address)
a member of the Appeal Panel in the matter of
………………………………………………………

DECLARE:

1.     I do not have and have not had a relationship with a party before the
       Appeal Panel of a kind that may cause a reasonable person to suspect
       that I may be biased, including:

                 A family relationship;
                 A close personal relationship;
                 A relationship involving personal hostility; or a
                 Business or employment relationship.

2.     I do not have or have not had any other personal or professional
       involvement in the matter to be considered by the Appeal Panel (e.g.
       pecuniary or non pecuniary interest in the matter – such as acting as
       a party’s adviser in the matter).

3.     I understand that, while acting as a member of the Appeal Panel, I
       am not subject to direction by, nor should I act on instructions from,
       any person, body or authority other than legal directions (e.g. from a
       court of law).

4.     I will conduct my duties as a member of the Appeal Panel in
       accordance with the Template Agreement of Core Conditions with
       fairness, equity and impartiality independent of any interests of the
       body which nominated me.

5.     I will contribute to the identification of the key issues of the appeal
       and participate in the analysis and assessment of those issues based
       on my own opinions on the merits and the information before the
       Panel.

6.     After making this declaration, should a relationship, involvement or
       interest of a kind described in this declaration develop, and there are

                                                                                  22
                                                            ATTACHMENT C

     grounds for reasonable suspicion of bias or prejudice on my part, I
     will disqualify myself from considering the appeal.

7.   I will ensure that the free and frank discussion of views of the Panel
     in deliberating the evidence and matters before the Appeal Panel
     remain strictly confidential.

8.   I acknowledge that the written recommendation is confidential and
     (subject to the Template Agreement) is only made available to the
     appellant and decision maker.

9.   I acknowledge that if I fail to comply with the requirements of this
     declaration, I may not be nominated for future Appeal Panel
     proceedings.




Signature………………………………………………………………………………. Date………………….




                                                                            23
                                                               ATTACHMENT D

       REFERENCES

ACT Legislation            http://www.legislation.act.gov.au

Commonwealth legislation   http://scaleplus.law.gov.au

Human Rights Act           http://www.legislation.act.gov.au/a/2004-5/default.asp

Public Sector
                           http://www.legislation.act.gov.au/a/1994-37/default.asp
Management Act
Public Sector
                           http://www.legislation.act.gov.au/di/2006-187/default.asp
Management Standards
Public Sector
                           http://www.psm.act.gov.au
Management website

Template Agreement         http://www.psm.act.gov.au/industrial_arrange.htm#ca

Workplace Relations Act    http://scaleplus.law.gov.au/html/pasteact/0/70/top.htm




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