Case summaries

These case summaries are drawn from reviews conducted by the Merit Protection Commissioner under section 33 of the Public Service Act 1999 into matters that relate to the employment of individual employees.

The case summaries are published for the purpose of informing APS employees, agencies and the public about the work of the Merit Protection Commissioner. They can be used by agencies and managers to inform their employment decision making.

Case summaries use de-identified information and provide a summary of the key issues identified in a review; they do not cover the full range of matters reviewed in individual cases.  Occasionally, the case summary is an amalgam of several similar cases.

Using the case summaries

Before using the case summaries, please read the general information page which is generic to all cases and the legal disclaimer. You should not rely upon the case studies as legal advice.


2016-17

Subject matter

Key issues

Case summary link

Code of Conduct caseMisconduct by a former APS employee: A conflict of interest in recruitmentView this summary
Code of Conduct caseEmployee found not to have engaged in misconduct in providing referee reportView this summary
Code of Conduct caseWhen is behaviour harassing?View this summary
Code of Conduct caseReduction in classification for failing to meet attendance requirementsView this summary
Code of Conduct caseReduction in classification for bullyingView this summary
Code of Conduct casesProcedural concerns arising from the failure to put allegations to employees in a way that they could respond toView this summary
Review casesObservations on principles based decision making and the APS policy frameworkView this summary
Review casesObservations on the legislative framework from review casesView this summary
Performance ManagementPerformance Improvement Plan - Who determines an employee's duties?View this summary
Final entitlements on separationNot eligible: complaint about an earlier employment dispute rather than final entitlementsView this summary

2015-16

Subject matter

Key issues

Case summary link

Code of Conduct case

Financial sanction to reflect seriousness of browsing client records

View this summary

Code of Conduct case

Investigation failed to establish facts or resolve conflicts in evidence—bullying and harassment

View this summary

Code of Conduct case

Investigation failed to establish that employee behaved inappropriately during a tender process—conflict of interest

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Code of Conduct case

Employee found to have made inappropriate postings on social media

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Code of Conduct cases

Misuse of commonwealth resources and conflict of interest with employees conducting own businesses

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Code of Conduct sanction decision

Employee found not to have shown genuine remorse

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Code of Conduct case

Direction on not smoking in the workplace unnecessary given smoking prohibited by government policy—failure to follow a direction

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Workplace practices

Using a pseudonym on correspondence to protect identity

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Performance management

Employee failed to establish his performance deserved a 'superior performance' rating

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Involuntary reduction in classification

Not offering a voluntary redundancy as an alternative to reclassification to a lower level

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Classification of duties

Revisiting a classification allocated following a machinery of government change

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Code of Conduct sanction decision

Reassignment of duties appropriate following working while under influence of prohibited drug

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Performance management

Reduction in classification for unsatisfactory performance

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Performance management

Impact of employee absences on performance rating

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Grants of discretionary leave

Balancing employee and operational needs in granting miscellaneous leave

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Flexible working arrangements

Sound business decisions provided for refusal of part-time work or outposting

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2014-15

Subject matter Key issues Case summary link
Code of Conduct sanction decision Reduction in classification for office manager engaging in a pattern of inappropriate behaviour representing a serious failure of leadership View this summary
Code of Conduct sanction decision How to apply the limit in Regulation 2.3 on fines View this summary
Code of Conduct breach decisions Private behaviour by employees as clients may be 'in connection with employment' View this summary
Code of Conduct breach decisions Drafting enforceable directions View this summary
Code of Conduct sanction decision Employee found to have released of client information without authorisation but sanction reduced due to mitigating circumstances View this summary
Code of Conduct case Substantial procedural flaws in bullying and harassment investigation and in the decision-making View this summary
Failure to investigate misconduct allegations Whether an employee can seek review of a decision not to investigate another person for suspected misconduct View this summary
Under-performance management Whether a reduction in classification for under-performance was fair and reasonable View this summary
Performance management Whether an unsatisfactory performance rating was fair and reasonable View this summary
Salary Advancement Unfair denial of salary advancement View this summary
Term transfer extension application for extension of transfer on compassionate grounds View this summary

2013–14

Case summaries for the period 2013–14
Subject matter Key issues Case summary link
Code of Conduct sanction decision Reduction in classification for harassment that was characteristic behaviour View this summary
Performance improvement plan Level of support provided to the employee appropriate including training View this summary
Voluntary redundancy Agency's need to retain specialist skills and no entitlement to made redundant View this summary
Code of Conduct breach and sanction for sexual harassment Whether harassing behaviour is a matter of objective or subjective judgement and seriousness of behaviour View this summary
Code of Conduct breach and sanction for breach of trust Lying about absence from work and improper influencing of subordinate View this summary
Part time work Agency decision was reasonable and took into account employee's circumstances. Employee did not genuinely engage with manager about alternatives. View this summary

2012–13

Case summaries for the period 2012–13
Subject matter Key issues Case summary link
Code of Conduct sanction decisions Harsh sanction and failure to consider mitigating circumstances View this summary
Performance rating Unfair process and insufficient evidence to determine underperformance View this summary
Performance Improvement Plan

Employee underperforming and appropriate performance expectations of agency

View this summary
Racial harrassment Context important in determining whether language constitutes harassment View this summary
Quality of Code of Conduct investigation Quality of decision-making and difficulties in separating fact from opinion View this summary
Code of Conduct investigation for sexual harassment Failure to put adverse witness evidence to person under investigation View this summary
Fitness of duty Weighing medical evidence to determine suitability for return to work View this summary

2011–2012

Case summaries for the period 2011–12
Subject matter Key issues Case summary link
Code of Conduct sanction decisions Lack of procedural fairness View this summary
Performance management Taking into account circumstantial evidence to find that bullying and harassment had occurred View this summary
Managing underperformance

Does the employee have a valid agreement?

View this summary
Bullying and harassment Further review of the employee's concerns not justified View this summary
Performance rating Assessing exceptional performance View this summary
Code of Conduct sanction decisions Decision maker bias and taking into account irrelevant material View this summary
Code of Conduct Can an agency revisit a determination that an employee has breached the Code of Conduct View this summary
Handling of a misconduct complaint Reopening a decision not to investigate an employee for suspected misconduct View this summary
Code of Conduct determination and sanctions Failure to comply with agency procedures View this summary
Unsatisfactory performance Failure to afford procedural fairness View this summary
Managing underperformance Provision of feedback and failure to comply with agency procedures View this summary

2010

Case summaries for 2010
Type of itemKeywords Case summary link
Review of actions Refusal to grant compassionate leave View this summary
Code of Conduct Creation of potential conflict of interest by acceptance of gift View this summary
Code of conduct Failure to attend medical examination View this summary
Code of Conduct Emailing unsolicited material View this summary
Review of actions Refusal to grant carer's leave View this summary

2009

Case summaries for 2009
Type of itemKeywords Case summary link
Code of Conduct Email sent to home address View this summary
Code of conduct financial record keeping for a social club View this summary
Review of actions non-reimbursement of relocation costs
transfer in the interest of the APS
View this summary
Review of actions an application for study View this summary

2007–08

Case summaries for the period 2007–8
Keywords Case summary link
legal representation View these summaries
severity of sanction
use of frivolous and vexations application exemption
adverse findings in departmental report
unauthorised release of information
severity of sanctions
deficiencies in departmental process
responsibilities of employee in performance management

Case summaries from previous years