Disclaimer: The following summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice .
Breach of the APS Code of Conduct - Late lodgement of application, Legal representation and Severity of sanction
An APS employee applied for review of a decision that by using and home garaging departmental motor vehicles without authorisation they breached subsections 13(2), (5) and (8) of the Act and of the sanction imposed for the breaches—reduction in classification from EL2 to EL1. In addition, they sought review of the decision to recover an amount to cover home garaging charges and Fringe Benefits Tax (FBT). These decisions had occurred more than 12 months before the application was made, and the application was lodged on the employee's behalf by their legal representative.
The Regulations provide that an action is not reviewable if lodged more than one year after the action happened, unless there are exceptional circumstances; and that an applicant appearing before a person conducting a review must do so without representation unless the Merit Protection Commissioner (MPC) agrees otherwise.
Here it was argued that the applicant suffered from serious medical problems which had prevented them from dealing with the matter. After consideration, the MPC agreed to accept the late application for review and allow legal representation.
After investigation, the MPC was reasonably satisfied that the applicant had breached subsections 13(2) and (5) of the Act, when after the earlier approval for permanent home garaging expired, the applicant failed to follow correct procedures in relation to the use and temporary home garaging of vehicles as required under the agency Chief Executive Instructions.
The agency also found that the applicant had used the cars for private purposes thereby breaching subsection 13(8). After investigation, the MPC could not be reasonably satisfied that the applicant had breached this subsection as there was no evidence of private use of the vehicles.
According to the Commission's Handling Misconduct sanctions, apart from acting as a deterrent to other staff by sending messages that bad behaviour will not be tolerated, should be proportionate to the seriousness of the breach. In this case, it was the view of the MPC that the sanction was far too severe. A number of factors led to this view, including that there was no evidence that the applicant derived personal gain from use of the vehicles, rather they were used to further the agency's business; the failure to comply with instructions was a result of procedural breakdown and work pressures, rather than any deliberate misbehaviour; and while the more senior and experienced an employee, the higher the expectation of appropriate behaviour, there was no evidence that the applicant could not be trusted with EL2 responsibilities.
With regard to the debt recovery aspect, it was the view of the MPC that the CEIs did not provide authority to raise the debt as they allowed charges only for permanent home garaging.
Consequently, it was recommended that the agency decision be varied to say that the applicant breached only subsections 13(2) and (5) of the Act, and that the sanction imposed be a reduction in salary for 12 months. Over the year, this reduction roughly equated to the debt originally raised for garaging and Fringe Benefits Tax.
Complaint about denial of procedural fairness - Use of frivolous and vexatious application exemption and Adverse findings in departmental report
An APS employee applied for secondary review by the MPC after an agency rejected their application for primary review. The applicant contended that they had not been afforded procedural fairness in the conduct of an investigation into staffing matters in their team. The agency rejected their application on the grounds that it was frivolous or vexatious, and that further review was not justified in the circumstances, given the extensive investigation that had already been undertaken.
The MPC decided that the application was not frivolous or vexatious, and the findings in the investigation report were sufficiently critical of the applicant to justify their perception that the outcome was not entirely favourable to them.
The agency undertook an investigation into a number of allegations and counter allegations by members of the applicant's work group, including allegations that the applicant had bullied and harassed two members of the team. While this was not an investigation under the agency's Code of Conduct procedures, as the applicant had been accused of behaviour that may ultimately have been found to be a breach of the Code, any investigation would normally be expected to afford them procedural fairness.
The investigation found that the applicant had not demonstrated bullying and harassing behaviour, but also found that a reasonable person would assess the applicant's behaviour towards a team member to have been, at times, lacking in respect and courtesy. While, the agency decided not to commence an investigation under its procedures for determining whether the applicant had breached the Code of Conduct, the applicant remained concerned that the findings included adverse comments about their behaviour and management of the situation.
The applicant asserted that they were denied procedural fairness, since they had not been given the opportunity to respond to criticisms about their behaviour in the final report.
The MPC considered the advice of the Administrative Review Council Best Practice Guide Decision Making: Natural Justice which notes that where a person's interests could be adversely affected by a decision, they should be notified that the decision is to be made, and provided with sufficient information to allow them to make effective use of the right to respond and present arguments.
The MPC concluded that in order for the applicant to be afforded procedural fairness they should have been provided with the draft report, including at least the substance of the information provided by witnesses and the investigator's preliminary conclusions, and given the opportunity to comment, before the report was finalised. It was also the opinion of the Commissioner that there was insufficient evidence to support the finding of the investigation that their behaviour lacked respect and courtesy.
The MPC recommended that the agency note the need for investigations into complaints of staff to have regard to procedural fairness and ensure this is reflected in relevant policies; and that a copy of the recommendation be attached to all copies of the report of the investigation to communicate the view that the applicant did not act without respect and courtesy in their dealings with the staff members.
Breach of APS Code of Conduct - Unauthorised release of information and Severity of sanctions - Deficiencies in departmental process
An APS employee applied for review of a decision that by releasing a document under the FOI Act which contained confidential information about another person they had breached subsections 13 (2), (5), (11) and (13) of the Public Service Act and of the sanctions imposed for these breaches—a reprimand and a fine of 1% of annual salary.
Subsection 15(3) of the Act provides that agency heads must establish procedures for determining whether an APS employee has breached the Code of Conduct. Chapter 5 of the Public Service Commissioner's Directions 1999 (the Directions) sets out the basic requirements with which such procedures must comply.
When reviewing a decision about a breach of the Code of Conduct, the MPC must consider, as a threshold matter, whether the agency procedures comply with the Directions and, if so, in the case in question, there was substantial compliance with those procedures – see generally Walworth v Merit Protection Commissioner & Anor (2007) FMCA (23 February 2007).
In this case, although the agency procedures complied with the Directions and there was substantial compliance with the procedures, there were a number of areas where, in the opinion of the MPC, the conduct of the agency investigation did not demonstrate good practice. These included that the investigator had been involved in earlier meetings about the case which had led to the decision to undertake Code of Conduct action. In these circumstances, appointing another investigator would have removed any perception of bias.
Also, the applicant was not provided with written notification of the investigation until after it was effectively completed. The notice was attached to a copy of the draft report of the investigator, which included the investigator's conclusions that the applicant had breached the Code of Conduct and the recommended sanctions to be imposed. In respect of the hearing rule, the Administrative Review Council best practice guide Decision Making: Natural Justice notes that a notice that refers to a 'provisional' or 'draft' decision, could give rise to an impression that the matter has been decided before the hearing.
Additionally the applicant, after initially refusing to participate in a taped interview—as they were entitled to do—was not given later opportunity to meet the investigator to put their case. It was only after the draft report was presented to them that they were given a formal opportunity to respond. Finally, much of the evidence collected did not seem to have been relevant to the matter under investigation.
In the Commissioner's opinion, there were reasonable grounds for the agency to find that the applicant had acted without appropriate care and diligence in the course of their employment (subsection 13(2)) and that, by placing their agency in what could have been an embarrassing position, the applicant did not comply with subsection 13(11) of the Act. However there was insufficient evidence that the applicant failed to comply with a direction to submit their work for quality assessment and therefore breached subsection 13(5).
To support the finding that the applicant breached subsection 13(13), the agency relied on Public Service Regulation 2.1(4) which relates to the duty of an APS employee not to disclose confidential information they obtain in connection with their employment. In the opinion of the MPC, the practical intent of this regulation was not to cover where an FOI officer makes a mistake and releases information that should have been withheld.
Consequently it was recommended that the decision that the applicant breached subsections 13(2) and (11) of the Act be confirmed and that the decision that they also breached subsections 13(5) and (13) be set aside. Noting in particular that there were several, fairly significant procedural deficiencies in the subsequent agency investigation, and that the investigation failed to establish that the applicant's mistake was deliberate, it was recommended that the sanction of a reprimand be confirmed while the sanction of a fine be set aside.
Alleged bullying and harassment by management and Lack of career advancement - Responsibility of employee in performance management
An APS employee applied for secondary review of their allegations of bullying and harassment by their managers. The agency's review had found that there was insufficient evidence to support the allegations.
The applicant cited their lack of career progression as the most compelling evidence that they had been subjected to bullying and harassment by their managers over a period of years. The applicant argued they were both well qualified and hard working and found it inexplicable that they had not won the promotions they deserved. In particular, the applicant alleged that previous managers had not allocated work appropriately, questioning the applicant's technical judgement. It appeared that the applicant felt that not allocating technical work was one of the ways in which their manager's behaviour was disrespectful.
The Commissioner's review considered a range of evidence from the applicant, their agency and other witnesses including the managers in question. The perspective of one manager with regard to the behaviours that the applicant saw as disrespectful was somewhat different, and indicated that the applicant was not accepting of feedback and that they continually questioned the allocation of work. The manager was of the view that it was open to them to allocate tasks on the basis of the capabilities of their staff.
The MPC concluded that the applicant's technical skills had been found wanting at times, that it did not seem unreasonable for managers to allocate tasks to those most able to achieve outcomes and that, to a large degree, such decisions were organisational rather than personal ones.
The MPC noted that the lack of career progression had been a long-standing issue and earlier professional intervention and assistance to the applicant to address their career management issues may have prevented the application for review. Equally, it was the responsibility of the applicant to engage in constructive discussion with their supervisors to address developmental issues.
Having said that, there was no evidence to support the applicant's allegations of bullying and harassment and it was recommended that the agency's decision be confirmed.