63GReview of findings

##### 63G Review of findings (1) Where, upon the holding of an inquiry into a charge laid against a person under subsection 61(2), section 63K or 63L, or upon the hearing by a Disciplinary Appeal Committee of an appeal in connexion with such a charge, the charge is found to have been established and: (a) in a case where the charge was laid under subsection 61(2): (i) a sum was deducted from the salary of the person; (ii) the salary of the person was reduced; (iii) the person was transferred to another office; or (iv) the person was dismissed from the Service; or (b) in a case where the charge was laid under section 63K or 63L—the person was dismissed from the Service; the person may, at any time, request the Merit Protection and Review Agency, in writing, to review the finding, or the action taken in respect of the charge, on the ground that evidence that was not given, and could not reasonably be expected to be given, on behalf of the person in the course of the investigation of the charge is now available and that the evidence might, if it had been given, have resulted in the charge being found not to have been established, or in less severe action being taken in respect of the charge, as the case may be. (2) A request under subsection (1) shall set out particulars of the evidence that has become available. (3) Where the Merit Protection and Review Agency is satisfied that the ground of the request is established, the Agency shall refer the request to a Disciplinary Appeal Committee. (4) Where the request of a person for the review of a finding is referred to a Disciplinary Appeal Committee, the Disciplinary Appeal Committee: (a) shall review the finding; (b) shall: (i) if it is satisfied, in the light of the evidence given when the charge was being investigated and of the evidence given before it in connexion with the review, that the person failed to fulfil his duty as an officer, or failed to fulfil his duty as an unattached officer within the meaning of Subdivision D, as the case requires—affirm the finding; or (ii) in any other case—quash the finding and recommend to the Public Service Board that it take such action, by way of recompensing the person, as is, in the opinion of the Public Service Board, reasonable and practicable in all the circumstances; and (c) shall furnish to the person and to the Public Service Board its reasons for making its decision. (5) Where the request of a person for the review of action taken in respect of a charge is referred to a Disciplinary Appeal Committee, the Disciplinary Appeal Committee: (a) shall review the action so taken; (b) shall: (i) if it is satisfied, in the light of the evidence given when the charge was being investigated and of the evidence given before it in connexion with the review, that the action so taken was not too severe—affirm the action; or (ii) in any other case—recommend to the Public Service Board that it take such action to mitigate the severity of the action as is, in the opinion of the Public Service Board, reasonable and practicable in all the circumstances; and (c) shall furnish to the person and to the Public Service Board its reasons for making its decision or recommendation. (6) The Public Service Board shall consider the recommendation given to it by a Disciplinary Appeal Committee upon a review under this section and the reasons for the recommendation and may, in its discretion: (a) where the recommendation relates to a review of a finding under subsection (4)—take such action by way of recompensing the person to whom the finding relates as is, in the opinion of the Board, reasonable and practicable in all the circumstances; or (b) where the recommendation relates to a review of action taken in respect of a charge under subsection (5)—take such action to mitigate the severity of the action as is, in the opinion of the Board, reasonable and practicable in all the circumstances. (7) Without limiting the power of the Board to take action under subsection (6), the Board may, if it considers it appropriate to do so: (a) in relation to a person who had been dismissed from the Service: (i) re‑appoint the person to the Service to fill his original office or an equivalent office, or, if such an office is not available, an available office as nearly as possible equivalent to his original office; (ii) if, at the time of his dismissal from the Service, he was a person to whom Division 2 of Part IV applied— re‑appoint the person to the Service as an unattached officer on leave without pay, having such rights with respect to promotion or transfer to an office in the Service as he had at the time of his dismissal; or (iii) if he is engaged in eligible public employment within the meaning of Part IV—declare him to have become a person to whom Division 3 of that Part applies; or (b) in relation to a person who had been transferred—direct that he be transferred to his original office or an equivalent office, or, if such an office is not available, an available office as nearly as possible equivalent to his original office. (8) Where, in pursuance of subsection (7), the Board declares a person to have become a person to whom Division 3 of Part IV applies, the person shall be deemed to have become such a person on the date on which the declaration is made. (9) Where a person who had, under this Division, been dismissed from the Service, is re‑appointed to the Service under this section, the person shall be deemed, during the period commencing on the day immediately following the day on which he was so dismissed and ending on the day immediately preceding the day on which he was so re‑appointed, to have continued in the Service and to have been absent from duty on leave of absence without pay, and the Board shall determine whether that period, or any part of that period, is to form part of the officer’s period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976 or the Superannuation Act 1990) and, if so, the purposes for which it is to form part of the period of his service. (10) In this section: (a) a reference to the investigation of a charge shall be read as a reference: (i) if the person charged appealed to a Disciplinary Appeal Committee—to the investigation of the charge by the Disciplinary Appeal Committee; or (ii) in any other case—to the investigation of the charge by the officer holding the inquiry; (b) a reference to the giving of evidence includes a reference to the submission or production of statements or other material; and (c) a reference to the taking of less severe action in respect of a charge shall be read as including a reference to counselling in respect of the charge.