89Conduct of review by Merit Protection Commissioner

89  Conduct of review by Merit Protection Commissioner

  If the Merit Protection Commissioner receives an application for secondary review of a Parliamentary Service action under section 88 and the Merit Protection Commissioner considers that the affected employee is entitled to review of the action under this Division, the Merit Protection Commissioner:

 (a) must conduct a de novo review of the action; and

 (b) may, subject to the minimum requirements mentioned in subsection 91(1), conduct the review in any manner the Merit Protection Commissioner thinks fit; and

 (c) must make a recommendation to the relevant Secretary, in writing, about the action; and

 (d) must tell the relevant Secretary, in writing, the reasons for the recommendation; and

 (e) must tell the affected employee, in writing, of the recommendation and reasons given to the relevant Secretary.

Note: The recommendation is not binding on the Secretary (see section 90).

Subdivision D—Action following recommendation to Secretary

90  Action by Secretary

 (1) If a Secretary receives a recommendation under section 86 or 89 following a review of a Parliamentary Service action, the Secretary must, as soon as reasonably practicable after receiving the recommendation:

 (2) For the purposes of paragraph (1)(b), the Secretary may:

 (a) confirm the action; or

 (b) vary the action; or

 (c) set the action aside and substitute a new action.

 (3) If the Secretary acts in accordance with the recommendation, the Secretary is not required to seek the view of the affected employee before acting on the recommendation.

Note:  The views of the affected employee should have been sought by the Merit Protection Commissioner during the review in accordance with the principles of procedural fairness.

 (4) Subsection (2) does not limit the employer powers of the Secretary in relation to the action or the affected employee.

Example: The Secretary may take other appropriate action to rectify effects of the action or restore the affected employee to the position in which the employee would have been if the action had not been taken.

 (5) If, after considering the recommendation:

 (a) the Secretary considers making a finding of a breach of the Code of Conduct; and

 (b) the Secretary had not made the finding before the recommendation was made; and

 (c) the finding was not mentioned in the recommendation;

the Secretary must comply with the procedures established under subsection 15(3) of the Act before deciding whether to make the finding.