Need for reasons when making decisions

The recent Full Bench appeal case of Redmond v Director General NSW Health [2012] NSWIRComm 147, dealt with an interesting area of relevance to all investigators operating within the NSW public and local government sectors and those making use of their reports.

This concerned the giving of reasons for disciplinary decisions made by employers, with the Full Bench of the NSW IRC going into some considerable detail to deal with the claims of a dismissed ambulance paramedic who claimed he had been given insufficient reasons to substantiate the decision to terminate his services.

In handing down their decision, the Full Bench found it was necessary for investigators or employers to go beyond mere “recitation of the evidence and the respective arguments” of the complainant and accused. Accordingly, employees needed to be provided with details on how issues in contention were resolved, including explaining how conclusions were reached as to the veracity of one parties evidence as opposed to the other.

The Full Bench found that employees needed to be shown that there had been a full consideration of the evidence of the accused as well as an explanation as to why the decision maker had not accepted their version of events, making reference to the underlying material facts and resolving any conflicting evidence. Doing so was important, the Full Bench noted, because the accused was entitled to know why one version of events was to be preferred over their own version as well as to know the material facts upon which such a conclusion was based.

On the issue of whether a non-judicial decision maker, such as Departmental delegate or Council General Manager, a  had a common law obligation to disclose the reasons for their decision, the Full Bench cited with approval the recent decision of the Full Court of Federal Court of Australia in Soliman v University of Technology Sydney [2012] FCAFC 146. After considering a decision in that case made by the Vice-President of UTS to provide a Senior Lecturer with only limited reasons for his decision to terminate the employee’s services, the Full Court held that while the common law did not provide a general duty to “provide findings or reasons for an administrative decision” in the absence of an express statutory requirement, there was an “implied duty to give proper reasons” where there was an appeal process available to the accused.

Action required by investigators and decision makers

The cases of Redmond and Soliman make it clear that decisions made by employers in the NSW public sector on workplace conduct issues must provide sufficient reasons justifying why that decision was reached in circumstances where:

–          The decision will impact on the rights and livelihood of the accused;

–          There is a requirement to comply with the common law expectations of procedural fairness;

–          There is a right of appeal from the decision ie to the IRC or FWC

In turn, this requirement to provide reasons will be especially relevant for investigators needing to make findings in situations where competing versions of events have been provided by the parties and there is the need to consider if it is possible to accept one of these versions over the other.

Accordingly, it is not enough for investigators to set out the competing evidence provided by the parties to an investigation and to express a preference of one version over the other – investigators will need to show they have undertaken the processes set out by the Full Bench in Redmond by disclosing the steps they have taken to reconcile competing versions of events and their reason for preferring one over the other.

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