As you are no doubt aware by now the letters containing the results of the 2009 Performance Review Process were circulated by DAFF by way of email just before Christmas 2011. It is apparent from the deluge of queries we are receiving that the performance review letters received by right holders are riddled with errors. It appears that right holders have been incorrectly assessed under almost every possible heading in the performance review letters.
Aside from the errors in assessment, the performance review letters themselves raise a number of queries regarding the methodology utilised in determining the “mean” averages in the various sectors as well as the right holder rankings. It is apparent on a brief perusal of the performance review letters that right holders who performed best in a particular sector were ranked at number 1 out of the population for the sector while right holders who performed the worst in a sector, for example with a 0 value, were ranked in the middle of the sector population. This of course suggests that there were members of the population who performed more poorly, which is patently impossible where the right holders scored 0 points. What do you have to score to rank near the bottom of the population if a score of 0 does not place you at the bottom?
Given the disappointing nature of the content of the performance review letters and the issues regarding questionable methodology in the determination of means and right holder rankings, the question that now stands to be answered is this:
What rights do right holders have to force DAFF to correct their performance review letters?
If one has regard to the view of DAFF it is quite apparent from the first page of the performance review letters that the Department and the Minister have a strong view in this regard:
“… the Department and the Minister will not entertain any appeals against the results of the performance reviews under section 80 of the Marine Living Resources Act, 1998 (Act 18 of 1998) (“the MLRA”). The results of the performance reviews are not “decisions” taken in terms of the MLRA. The results mainly reflect an assessment by the Department, which in certain instances may result in steps being taken against the right holder in section 28 of the MLRA for the revocation, suspension, cancellation, alteration or reduction of the right”.
So, in the absence of a right of appeal to the Minister to correct the performance review letters, what process has been put in place to protect right holders interests? The answer appears on the last page of the performance review letters where it states that where right holders are dissatisfied with the results of the performance reviews they are advised to send written objections to the DDG. Right holders are then informed that:
“…The Department will file all written objections along with the results of the individual Right Holder but will not engage in any further analysis or communication regarding objections received.”
In other words the objections will be received and, apparently, stored separately from the performance review letters which are presumably stored on a database for future reference. This, of course, means that right holders are fully reliant on DAFF’s ability to safely store both the data and the written objections in separate areas for an extensive period of time and thereafter to be able to access both data and hard copy objections at a later date and to read the performance review letters in conjunction with the hard copy objections which have been archived. This may not satisfy right holders that their objections will be noted in the future let alone read.
The fact of the matter is that the term “decision” is not defined in the MLRA and in order for right holders to accept the view of DAFF they will have to look a little further. The applicable legislation regarding administrative action of this nature is the Promotion of Administrative Justice Act (“PAJA”). In this Act the term “decision” is defined and covers a wide range of activities relating to decision making including actions taken preparatory to the making of a decision. Whether or not right holders agree that no decisions have been taken in the compilation of the performance review letters (Does ranking right holders constitute a decision? Does advising right holders that their performance is above or below average constitute a decision? Does advising right holders that their explanations/submission of information is unsatisfactory constitute a decision?), the real question is if the performance review letters are utilised by future decision makers when allocating rights/quantum, does the performance review process constitute work done in preparation of a decision?
DAFF has already gone on record that it cannot preclude future delegated authorities or the Minister from relying on the performance review letters when future rights allocations or allocations of quantum are made. Given the fact that these performance review letters may well be utilised by future delegated authorities and/or the Minister in determining which right holders should be allocated rights and what quantum/effort should be allocated, is it not critical that the performance review letters reflect an accurate picture?
One thing that is clear is that in terms of Regulation 5 of the MLRA, right holders have 30 days to submit their appeal once they have received their decision. It would appear that the performance review letters, which are dated 22 December, were circulated to right holders on or about 23 December 2011. Unfortunately for right holders this would suggest that the expiry date of the 30 day period, assuming right holders have actually received their performance review letters, was Friday, 20 January 2012. However, owing to the fact that not all the necessary information has been supplied by DAFF to enable right holders to determine whether they need to appeal, it can be persuasively argued that right holders have not yet been provided all the information constituting a “decision” as envisaged in Regulation 5. In short DAFF has not supplied any of the data or methodology regarding the calculation of the sector means or the right holder rankings. In order for right holders to determine if they have been properly “assessed” they will need to check this data and re-perform the calculations to determine whether they have been correctly assessed as being above or below the mean or whether the right holder rankings are correct. This information has been requested from DAFF by numerous individual right holders and industry associations and to date has not been forth coming. Accordingly, some right holders and industry associations might hold the view that the 30 day period prescribed in Regulation 5 of the MLRA has not yet commenced running.
Whatever your view or opinion on the matter, we would strongly recommend that you carefully peruse your performance review letter in conjunction with your performance review RFI (Request for Information) form. Any errors that appear should be communicated to DAFF immediately as an objection, as envisaged in the performance review letters, and as an appeal under section 80 of the MLRA. We would strongly recommend that right holders reserve all their rights to supplement their objection/appeals at a later date and to force the Minister if necessary to decide the appeals. We also strongly recommend that you reserve the right to do this at any stage up to and including the allocation of future long term rights, in order to avoid DAFF and the Minister relying on the fact that too much time has passed between the provision of the right holders performance review letters and the use thereof in the allocation of future long term rights.
One would hope that sanity would prevail at DAFF and that the sheer volume of errors in the performance review letters will count against them ever being utilised by the Minister or a future delegated authority in any decision process. However, until such time as such an undertaking is given by the Minister and/or DAFF we recommend that right holders protect their interests and act.