External complaints about OAIC employees or contractors

Operational policy for the management of external complaints about the behaviour of OAIC employees or contractors

Audience and location: All staff
Review Date: 30 September 2021

Version

Name

Changes

Date

0.1

E. Hampton

Initial draft

5 June 2020

0.2

A. Falk

Amendment to draft

29 June 2020

0.3

A. Falk

Cleared

30 June 2020

0.4

E. Hampton

Amendment

23 August 2020

0.5

 

AGS amendments

23 September 2020

0.6

A. Falk

Approved

26 November 2020

Executive summary

This operational policy describes the way in which the Office of the Australian Information Commissioner (OAIC) will manage external complaints about the behaviour of its employees or contractors (staff members).

Complaints that a staff member has interfered with the privacy of an individual are not managed under this operational policy. Such complaints must be managed in accordance with the Privacy Complaints about OAIC.

This policy is modelled on the Better Practice Guide to Complaint Handling published by the Office of the Commonwealth Ombudsman.

This policy does not preclude action being taken under the Breaches of the APS Code of Conduct Procedures (if the complaint relates to a current or former OAIC employee) or under an applicable contract (if the complaint relates to a contractor).

The value of complaints

The OAIC values complaints and recognises their importance in highlighting weaknesses in its systems, processes or customer service, providing an opportunity to resolve problems with stakeholders and improve its accountability and effectiveness.

In line with this, the OAIC defines a complaint broadly, as

an expression of dissatisfaction by a complainant, inquirer, subject or respondent, for which there is a reasonable expectation that the OAIC will consider and, where appropriate, investigate and resolve the matter.

This is different from feedback

where information is provided to the OAIC for the purposes of improving its systems or processes, but about which there is no expectation of an investigation or response.

Complaints can be provided to the OAIC through a range of mechanisms:

  • over the telephone
  • in an email
  • in formal correspondence
  • during a meeting (such as an exit interview for an assessment)

and at any time during an individual’s interaction with the OAIC.  There is no requirement for a complaint to be made using a specific form, or in a specified manner.

Staff must be aware of the different ways an individual may make a complaint and follow this policy in the event a complaint about an OAIC staff member is made.

If a complaint is a public interest disclosure, the complaint must be handled in accordance with OAIC’s Public Interest Disclosure Procedures rather than under this policy.

Complaint handling process

Resolution by the staff member involved

Complainants are encouraged to raise concerns about the behaviour of staff members with the staff member concerned.

Staff members should attempt to resolve the complaint with the individual directly. Sometimes this might be possible by providing an explanation of the OAIC’s processes and timeframes for managing different matters or apologising if the staff member has not met the commitment the OAIC provides to members of the public through its Charter.

Where the staff member is able to successfully resolve the complaint, the staff member must still create an ‘OAIC complaint’ Resolve record to capture the complaint and its resolution.

The staff member must advise their manager of the complaint and its resolution and the Resolve record relating to the complaint must be sent to the staff member’s manager.

Complaint is unable to be resolved by the staff member involved

Where the complainant prefers to raise the matter with someone other than the staff member involved, or where the attempt to resolve the matter with the staff member involved has been unsuccessful, the complainant should be provided with the contact details of the staff member’s manager. The complainant may make their complaint by telephone, email or in hard copy correspondence.

The manager should follow the processes outlined below in relation to the complaint.

Acknowledge

All complaints must be acknowledged quickly. The acknowledgement should outline the complaint process and likely timeframes.

Complaints can be acknowledged over the phone, by email or through formal correspondence, depending on the circumstances.

Complaints must be entered into Resolve by the person receiving the complaint, using the ‘OAIC complaints’ case type.

The manager receiving the complaint must resolve the matter as confidentially as possible – that is, without discussing the matter with other staff, with the exception of the person’s Assistant Commissioner or Principal Director or others who have a clear need to know. All complaints that have been made to a manager about a staff member must be reported to the relevant Assistant Commissioner or Principal Director. In some circumstances it will be necessary for the staff member concerned to be advised of the complaint if necessary to provide them with procedural fairness, including where an investigation occurs under this policy or OAIC’s Breaches of the APS Code of Conduct Procedures.

Assess

The complaint must be assessed by the manager of the staff member about whom the complaint is made.

The manager will decide who should investigate the complaint, the timeframes for that investigation, and whether any changes to processes should be implemented while the investigation is undertaken. For example, if the complaint relates to a difficult interaction between an individual and a staff member, the manager may decide that another staff member will be responsible for contact with the individual while the complaint is investigated.

The manager will also decide whether the complaint should be managed in accordance with this policy, or (if it relates to a current or former OAIC employee) referred under the OAIC’s Breaches of the APS Code of Conduct Procedures, in which case those procedures take precedence. The manager may seek the advice of their Assistant Commissioner, Principal Director or Principal Lawyer in relation to that decision. If the complaint is referred for consideration under OAIC’s Breaches of the APS Code of Conduct Procedures and there is a decision not to handle it under those procedures, the manager may resume managing the complaint in accordance with this policy.

If the complaint relates to the conduct of a contractor, the manager will also decide whether the complaint should be managed in accordance with this policy, or in accordance with any relevant provisions of the applicable contract.

The manager may contact the complainant to ask how they would like to see the complaint resolved – what outcome they are seeking – if that is not evident from the complaint. They may also provide more information to the complainant about the investigation of the complaint and the contact details of the person who will undertake the investigation.

The manager may decide that a complaint does not need to be investigated. For example, the subject of the complaint may have been previously considered, or the staff member about whom the complaint is made may no longer work for the OIAC and the complaint does not identify any systemic issues that would otherwise warrant investigation.

The manager must record the outcome of their assessment in the Resolve ‘OAIC complaint’ record – including the details of the person to whom it is assigned for investigation and required timeframes for any investigation, or a decision not to investigate the matter.

The manager may decide to investigate the matter themselves or may assign the matter to a different investigator.

In the event of a decision not to investigate the matter, the manager must advise the complainant of that decision and close the matter in Resolve.

Plan

The person to whom the complaint is assigned for investigation should prepare a short, written plan for the investigation that includes:

  • what is the issue to be investigated?
  • what information is required?
  • how will that information be obtained?
  • how long will it take to obtain that information?
  • are there any special considerations that apply to the complaint – for example, is there sensitive or confidential information that needs to be safeguarded?

The investigation plan must be attached to the Resolve ‘OAIC complaint’ record within two days of the matter being assigned to the investigator.

Investigate

The investigation must be quick, confidential (subject to contrary legal obligations such as procedural fairness) and impartial.

Quick:

Investigations into complaints about staff members should take no more than two weeks.

Confidential:

Confidentiality is owed to both the complainant and the staff member, subject to contrary legal obligations such as the obligation to give procedural fairness. For example, this policy provides for the staff member about whom the complaint has been made to be advised of the details of the complaint and provided an opportunity to respond.

For the complainant:

  • staff members investigating regulatory matters raised by the complainant do not need to know that the complainant has made a complaint about the behaviour of a staff member.
  • the Resolve record relating to the complaint must only be accessed by individuals who have a need to know about the complaint.

For the staff member:

  • confidentiality is also owed to the staff member who is the subject of the complaint. The fact that there has been a complaint made and the nature of the complaint should not be shared with other staff members. In the event the complaint is substantiated, any appropriate steps will be managed between the staff member and their manager or in accordance with OAIC’s Breaches of the APS Code of Conduct Procedures.

Impartial:

The investigation should be impartial and fair. There is no onus on the complainant to ‘prove’ their complaint, nor any obligation on the staff member to ‘prove’ they behaved appropriately. Rather, the matter must be weighed carefully through a balanced investigation of all relevant facts and circumstances and findings reached on the balance of probabilities.

Findings on disputed facts should be based on evidence, not preconceptions, assumptions or ‘how we usually do things’.

A written record should be kept and relevant evidence, including statements where appropriate, attached to the Resolve record.

The staff member about whom the complaint has been made should be advised of the details of the complaint and provided an opportunity to respond.

A complainant should be given an opportunity to comment on information or claims that are inconsistent with their account of the matter. A complainant is not obliged to substantiate each fact or element in their complaint but it is reasonable for the investigator to ask them to assist the investigation by providing information about what they know, including documents and dates where applicable.

It is acknowledged that in some cases there will not be clear evidence to support or dispute the complaint.

An investigation report must be attached to the Resolve record.

Respond

When the investigation has been completed, the complainant should be advised of the findings and decision reached. The relevant Assistant Commissioner or Principal Director must clear any response.

Thought should be given to whether a remedy can be provided to a complainant where the complaint is substantiated. Remedies might include an apology or a change in process. Advice to complainants about the outcomes of investigations will be consistent with the requirements of the Privacy Act and any applicable guidance from the Australian Public Service Commission.

The response can be provided by telephone, email or formal correspondence, depending on the circumstances.

Systemic issues

In all cases following the investigation and resolution of a complaint, consideration must be given to whether the complaint identifies systemic weaknesses in the OAIC’s policies, procedures or training. Even if the complaint is unsubstantiated, the investigation may identify matters that could have been managed differently and better, the need for training (for particular staff or in relation to particular interactions) or improvements to recordkeeping.

Every complaint provides an opportunity for the OAIC to improve its work practices, procedures and interactions.

Either as part of the response to the complainant, or following as appropriate, the investigator should consider and document whether the complaint identifies systemic issues and must bring them to the attention of the relevant Assistant Commissioner or Principal Director.

The Assistant Commissioner or Principal Director will decide how those systemic issues can be addressed.

The Resolve record must include a file note about whether and what systemic issues have been raised by the complaint, and how they will be addressed. The matter must not be finalised in Resolve until that note has been attached.

Complaints regarding Assistant Commissioners or Principal Directors

Complaints made by an external person about Assistant Commissioners or Principal Directors will be handled by the Deputy Commissioner personally, or by Legal Services or an external provider as appropriate.

Appropriate record keeping and procedural fairness requirements must be complied with.

Complaints regarding the Deputy Commissioner

Complaints made by an external person about the Deputy Commissioner will be handled by the Commissioner personally, or by Legal Services or an external provider as appropriate.

Appropriate record keeping and procedural fairness requirements must be complied with.