Lodging a breach claim
This page contains information for people who are thinking about lodging a breach of Standard claim.
Speak to the agency first
Ask the agency for information about how and why the decision was made. This information may assist you to understand the process used and the reasons why the agency made its decision.
Decide if you can make a claim
Once a final decision is made you can lodge a claim if you consider that:
- the agency has breached a Public Sector Standard, and
- you have been adversely affected by the breach.
There are some situations where you cannot lodge a claim. You should check whether you are eligible to lodge a claim with the agency that made the decision.
You must lodge a claim in writing with the agency that made the decision. It must include:
- why you believe there has been a breach of the Standard, and
- how you have been adversely affected by the breach.
Timeframes for lodging
You must lodge a claim within the required timeframe:
- The Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 prescribe the lodgement periods for claims.
- The lodgement period varies depending on the activity or process undertaken.
- For some decisions relating to the Employment Standard, you may be provided with a minimum of 4 working days to lodge a claim.
- For other processes including transfers, you have 10 working days from when you become aware of the decision or 30 working days after the decision was made, whichever occurs first.
The agency’s role once a claim is lodged
When you lodge your claim, the agency may contact you to explain their decision or to try to resolve your concerns. If you consider the explanation or action resolves your claim, you can withdraw your claim by writing to the agency.
If your claim is not resolved within 15 working days after lodgement, the agency must forward your claim to the Public Sector Commission.
The Public Sector Commission’s role
Once your claim is received from the agency, the Commission will check to ensure it is within jurisdiction. The Regulations provide for the Commissioner to decline to deal with a claim in certain circumstances including if it is considered vexatious, lacking in substance or if it is only about your merit as an applicant. If your claim is accepted, it will be allocated to a PSC Consultant.
The PSC Consultant or Conciliation and Review Officer appointed by the Commissioner (CRO) will contact you and the agency to discuss the issues of the claim and determine how to proceed. The Regulations provide for claims to be conciliated or reviewed. Conciliation is optional, and in order for conciliation to proceed both parties must agree to participate.
Where a claim is to be conciliated PSC will generally appoint an external conciliator to undertake this process.
Conciliation is a process where the parties are encouraged to discuss the claim and reach agreement on how to resolve it. If this happens you will both sign an agreement and the claim is concluded.
If conciliation is not possible, or fails to reach an agreement, your claim will proceed to a review and a determination will be made by the Commissioner.
For more information, see the Conciliation page.
The PSC Consultant or the CRO will review the facts and circumstances of your claim as they relate to the Standard and provide a report to the Commissioner. The review may include:
- requesting information from you or the agency
- interviewing you and other relevant people, and
- considering information and documents from you, the agency or any other relevant source.
For more information, see the Review page.
The Commissioner will make a determination based on the report and any other relevant information that:
- the claim is dismissed; or
- there has been a breach of the Standard.
The Commissioner may also make a decision to decline to deal with your claim.
The Commissioner will inform both you and the agency, in writing, of the determination of your claim and reasons for that determination.
The Commissioner will also write to you if the Commissioner declines to deal with your claim.
Commissioner recommends action
Where a breach is found, the Commissioner may recommend action to be taken by the agency to remedy the breach. This will vary depending on the circumstances. Examples may include:
- recommencing a process from the start or from the point where the flaw occurred, or
- changes to the agency’s policies or practices.
The Commissioner cannot recommend that you are a better person for a job than another applicant and that you should be appointed to a position.
Claims can be finalised when:
- you withdraw your claim
- you reach a conciliated agreement
- the Commissioner dismisses or declines to deal with your claim
- the Commissioner finds a breach, or your claim lapses because the Commissioner considers you are not participating (before this decision you will be informed that your claim may lapse and given five days to respond)
For more information on lodging claims, contact the Public Sector Commission’s advisory line on 6552 8888.
It is important to understand that PSC staff cannot provide you with an opinion about whether your claim is likely to succeed. Only the Commissioner can make a determination at the end of the breach claim process.
Page last updated 27 September 2012