Public Sector Informant: What does procedural fairness in APS code of conduct investigations actually look like?

This may all sound rather lofty. But procedural fairness remains a fundamental legal doctrine, two millennia on from Seneca (a Roman playwright). And for those in the public service, it remains particularly important - governing the way in which employment disputes are managed. If a public servant finds themselves the subject of an APS Code of Conduct investigation, they are entitled to expect minimum standards of procedural fairness.

This column is intended to be practical. Last time we wrote about procedural fairness in these pages, in 2017, we compared procedural fairness to pornography - and that famous line from an American Supreme Court justice, "I know it when I see it." It remains the case that procedural fairness is a sometimes-amorphous concept that can be difficult to define in the abstract. But we hope to focus on concrete examples of what procedural fairness means in the APS context.

To begin, though, it is necessary to identify the legal underpinnings of procedural fairness. In the APS context, the significant of procedural fairness is at least fourfold. First, the concept originated in the common law and continues to apply in the absence of statutory intervention. Second, employment decisions made by government decision-makers - such as to terminate someone's employment - are government decisions like any other, and therefore subject to judicial review, where procedural fairness is a critical doctrine.

Third, procedural fairness is mandated by the Public Service Act 1999, which provides at section 15 that agencies must establish procedures for managing Code of Conduct matters, and these "must have due regard to procedural fairness". Fourth, APS employment is also subject to general statutory employment law, such as the Fair Work Act 2009, and a failure to provide procedural fairness can constitute unfair dismissal.

With that out of the way - what does procedural fairness actually mean? As the Australian Public Service Commission has summarised, procedural fairness has three primary components:

But it is also important to clarify what procedural fairness is not. Procedural fairness is concerned with the decision-making process rather than the decision itself. As the High Court has said many times, what is required "is a fair hearing, not a fair outcome".

READ MORE:

Procedural fairness has a range of implications in APS Code of Conduct investigations. At any one time, we are advising a dozen or so public servants facing such investigations and, unfortunately, procedural fairness issues are all too common. Left unaddressed, a failure to provide procedural fairness is not only unfair for the public servant - but may force them to pursue legal avenues to have the issue addressed.

The bias rule is relatively straight-forward. The decision-maker in an investigation must be impartial - they should have had no involvement in the underlying conduct or connection with relevant parties. The legal test has two limbs: not only must the decision-maker be free from actual bias, but also any apprehension of bias (in other words, facts that might lead a reasonable bystander to apprehend bias).

The hearing rule, though, is more complex, particularly as what it requires will vary depending on the circumstances. But for present purposes, we will offer some examples. First, the accused in an investigation must be told, with precision, the allegations made against them. In a somewhat comical case, Roelofs v Auto Classic, an employee was dismissed for alleging viewing explicit websites at work. Although not arising in the APS context, Roelofs is instructive for what not to do - the employee was dismissed with no warning, at an unexpected meeting (he was "ambushed", the Fair Work Commission subsequently held), where the employee was not asked whether he had accessed the website or why he had done so. It was, in short, a complete failure of procedural fairness.

Given the APS's institutional expertise and access to lawyers, one might imagine such a series of errors could never occur in the public services. But there are many cases where procedural fairness has been founding wanting. For example, in Gmitrovic v Department of Defence, a 2014 case, the department was criticised for an "amateurish and unfair" investigation in which the reasons used to justify the dismissal where significantly different from the allegations that had been put to the public servant. Accordingly, it is critical that the allegation be "disclosed adequately and with sufficient particularity so that the employee may respond to it".

The hearing rule also requires that the subject of an investigation be given an opportunity to respond to adverse evidence. This does not mean that every document that arises in an investigation must be provided to the accused, but material that is "credible, relevant and significant" must be. In a case involving allegations of misconduct in the AFP, Eaton v Overland, the investigators failed to put the police officer under investigation on notice that the AFP Commission had formed the view that the allegation was substantiated. A judge held this amounted to a failure of procedural fairness: "Mr Eaton was entitled to a procedure unsullied by important material not being shown to him."

Despite the long lineage of procedural fairness - dating back to at least the Greeks, or even Adam and Eve - it remains a fraught concept. "The books are full of cases which illustrate ... the impossibility of laying down a universally valid test," High Court judge Frank Kitto once observed. But the difficulty in precisely-identifying what is required by procedural fairness in any particular case does not make that task any less important. Given the potential consequences of an adverse APS Code of Conduct finding, properly affording procedural fairness is essential.