Disclaimer: The following summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice.
Code of Conduct—Failure to comply with direction to attend medical examination
Key words: EL2 employee—failure to attend medical examination—reduction in classification—mitigating circumstances—upheld
The agency found the applicant had breached the Code of Conduct as it determined there was a failure to comply with lawful and reasonable directions in not undergoing medical assessments as directed and that the applicant had not acted with honesty and integrity in sending an email containing false claims to a work colleague. These actions were found to have breached sections 13(1) and 13(5) of the Public Service Act 1999. The agency imposed a sanction of a reduction in classification from EL2 to EL1 and a fine of the amount of the cost of the medical examination.
When the agency made an appointment for the applicant to attend a medical assessment, the applicant asked for a direction to attend. The agency subsequently directed the applicant under Regulation 3.2(2) of the Regulations to undergo a medical examination.
The applicant did not attend the medical appointment, and a second appointment was made. A direction to attend that appointment was also given to the applicant. The applicant's reason for non-attendance was due to the medical practitioner not agreeing to the interview being recorded. The applicant stated that the applicant had been advised by the manager and director of the work area to record the interview. Both the manager and director advised that they had encouraged the applicant to attend the assessment, had discussed the possibility of the appointment being recorded but had not suggested that the assessment be abandoned if this did not occur.
In the review application, the applicant asked the Merit Protection Commission to overturn the finding of breach and a reduction in sanction as it was excessive. The applicant also claimed the direction to attend a medical assessment was improperly motivated as the manager who issued the direction was improperly influenced by an email from an employee who had complained about the applicant. An investigation into a suspected breach of the Code by the applicant had commenced following this complaint, and the applicant was found to have breached the Code of Conduct. Prior to determining a sanction, it had been decided by the agency to seek a medical assessment. It is that assessment to which the directions in this review relate.
The applicant claimed the need for a medical examination was raised by the employee who had made complaints, unduly influencing the manager. The applicant objected to the lack of opportunity to respond to the email.
The email in question was sent by the employee as part of the initial Code of Conduct investigation. It contained the statement
"if [the applicant] has issues, it should be recommended … that [the applicant] seek some sort of medical attention".
The review found however, that the initial advice to send the applicant for a medical examination came from the agency's legal area. The manager who was the sanction delegate had asked that the draft sanction report be referred to the legal area. The advice given by the legal area was:
"[the applicant] should undergo a fitness for duty before any sanction is imposed. I think we should determine whether there is any underlying medical condition first, given [the applicant's] response to the determination report and the observations made of [the applicant's] difficult personal circumstances".
The review indicated that whatever might be said about the manager's knowledge of the email, the legal area independently recommended a medical assessment without being asked whether one should be conducted. In addition, the direction to attend from the manager was ultimately at the request of the applicant.
First medical examination
That the applicant was directed to undergo a medical examination and then did not attend the appointment was never in dispute. It is clear the applicant had issues with attending the appointment, which is why a direction to attend had been sought.
In the response to the Notice of Suspected Breach, the applicant said that on the day in question
"I was on carers leave … There was no avenue to renegotiate the date…".
It was apparent that the applicant did have carers leave granted for the day in question. The Merit Protection Commissioner considered that the applicant could not be said to have failed to comply with a direction, which was work-related, when formally excused from being at work for caring purposes. Therefore, the Merit Protection Commissioner was not satisfied that with respect to the first appointment, the applicant had failed to comply with a lawful and reasonable direction.
Second medical appointment
The applicant did attend the second appointment but no medical examination took place as the applicant insisted on recording the appointment and the doctor would not allow it.
The applicant had been advised that an appointment had been made and was directed to attend the medical examination. The applicant did not undergo an examination as a direct result of a position adopted by the applicant. As such, the Merit Protection Commissioner was satisfied that with respect to this appointment, the applicant failed to comply with a lawful and reasonable direction.
The applicant had been accused of making a false statement:
"By allegedly falsely stating that [the director and the manager] advised you to record the interview of your assessment with [the doctor], it is alleged that you did not behave with honesty and integrity".
The applicant had sent an email to the corporate area, which in part relevantly said the applicant had asked the doctor whether the interview could be recorded
"as I was advised by both [my manager and director] to record the interview".
When approached by the corporate area about this, the manager and director provided a joint written response. They said they had had an informal conversation with the applicant about the medical assessment, and they told the applicant to seek whatever help was necessary noting that
"neither of us have experience with this type of assessment". They said they encouraged the applicant to talk to the corporate area about the process.
The applicant said in one statement that
"[I] never said that my managers advised me to abandon the interview if the doctor was unwilling to have the interview recorded", and as far as this office could determine that was the case. The issue, as set out in the Notice of Suspected Breach, was whether the statement by the applicant that they advised him to record it was accurate or not.
The following statement by the applicant was considered particularly relevant. In responding to the breach notice the applicant said with respect to the manager and the director:
"…they had merely agreed with me that recording the interview would be a prudent precaution on my part. There was no inference that they had in any way meant that taping was an accepted practice. This was clearly outside their field of expertise. The three of us just never considered the possibility that there would be any problem with this as it sounded so reasonable".
The applicant later said:
"We certainly discussed the issue of taping the interview. Whether the more appropriate word from the discussions I had should have been 'discussed' rather than 'advised' is unclear without a transcript… The word 'advised' is not exactly a word that has much connotation. I am quite in my rights in saying that the way I interpreted the meeting with my managers is that this word was appropriate…".
In the opinion of the Merit Protection Commissioner the word 'advised' had very obvious connotations. It clearly suggested the director and manager recommended the course of action, as opposed to "merely agreeing" with the applicant's suggestion. Further, that agreement was qualified by the director and manager saying that they could not give advice on process and that the applicant should speak to the corporate area to see what was allowed.
In the opinion of the Merit Protection Commissioner, 'merely agreeing' with a course of action falls short of 'advising' that the course of action be pursued, and that it does so to such an extent that the difference cannot be said to be semantical. The applicant said
"If I had said discussed … instead of advised would much turn on this?", and the answer clearly was yes.
It was also reasonable to infer, given the accounts, that no one said that the interview could be recorded, and that the applicant understood this. It also appeared the applicant was advised to seek further advice from the corporate area about what was and was not allowed, and did not do so. In all the circumstances therefore, the Merit Protection Commissioner was satisfied that the applicant did falsely state that the applicant had been advised to record the assessment.
The applicant was found to have breached subsections 13(1) and 13(5) of the Act.
Subsection 13(1) requires that an APS employee must behave honestly and with integrity in the course of APS employment. Behaving honestly involves concepts such as truthfulness, sincerity and frankness. Integrity involves 'a soundness of moral principle and character'.
In the response to the notice of suspected breach, the applicant stated
"A false statement to be in any relevant to constituting bad conduct must have some impact or effect in assisting me…".
A breach of the Code does not require intent, and the Merit Protection Commissioner does not agree that for conduct to be unacceptable, a false statement has to assist the applicant in some way. As intent is not necessary, it is not necessary to find that someone deliberately lied in order to find they were not honest, but something more than simply getting it wrong is required. There is room in the Code for an honest mistake. The Merit Protection Commissioner was satisfied the applicant did breach s.13(1) as the applicant was less than frank about how the issue was discussed.
Subsection 13(5) requires an APS employee to comply with any lawful and reasonable direction given by someone in the employee's agency who has the authority to give the direction. The Merit Protection Commissioner was satisfied that the manager had the necessary authority. The direction was also lawful, and was given pursuant to Regulation 3.2(2) of the Regulations.
The applicant was concerned about the purpose of the assessment, and that there were improper reasons for making the medical appointment. This raised the question of whether the direction was reasonable.
One of the grounds on which an APS employee may be directed to undergo a medical examination is where there is a belief that the health of the employee may be affecting the employee's standard of conduct. The direction from the manager to the applicant arose out of a conduct issue. Material put forward by the applicant in the course of the investigation into the conduct matter included submissions covering personal circumstances.
Other submissions would likely have been seen against that background, and in the opinion of the Merit Protection Commissioner, were sufficient to found a reasonable belief that the applicant's wellbeing may be affecting conduct. As such, in the opinion of the Merit Protection Commissioner the direction was reasonable.
Given the conclusion about the conduct of the applicant with respect to this appointment, in the opinion of the Merit Protection Commissioner the applicant breached section 13(5) of the Act. While the review concluded that the applicant failed to comply with one direction rather than two, this is conduct which, in the opinion of the Merit Protection Commissioner, goes directly to the employment relationship. As an EL2 employee, the applicant is expected to lead by example and model behaviour of a high standard. That EL2 employees are expected to be leaders is specifically addressed in the agency's collective agreements over the relevant period.
The applicant had been employed in the agency for a long time, and apart from the related conduct matter, had no previous history of unacceptable conduct. The applicant was experiencing personal difficulties that may have affected judgement, and was a mitigating factor.
It was clear that the applicant did not believe that the behaviour was wrong. The applicant said in the response to the breach determination that, in effect, there had been two sanctions—one for the initial conduct and a subsequent sanction
"for the defence I put up against the sanction in the first place." While the applicant was entitled to a strongly-held position, the applicant's views were relevant to the severity of the sanction. A message needed to be given that the conduct was not in fact appropriate.
In the opinion of the Merit Protection Commissioner, in all the circumstances a reduction in classification from the Executive level altogether might well have been warranted, but for the various mitigating factors. The reduction imposed by the agency was an appropriate balance, and the fine imposed to recover the cost of the appointment was not unwarranted.
Lessons learnt: It is not appropriate to direct an employee to attend a medical examination when on authorised leave. If an employee is in doubt about a process in which he or she has been directed to participate, they should seek informed advice. Failure to follow a lawful and reasonable direction and to act with integrity by a senior employee is a failure of leadership which is relevant to sanction.
Office of the Merit Protection Commissioner
 These elements of the Code are explained in Outcome section of this summary.