- misconduct complainant
- agency decision to counsel
The following case summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice.
Should an agency reopen a decision not to investigate an employee for suspected misconduct because the complainant is dissatisfied?
A manager sought review of an agency decision not to investigate an employee for suspected misconduct for refusing to follow the manager's guidance and for alleged acts of rudeness and harassment.
The manager's concerns had been the subject of a harassment investigation, the outcome of which was that the employee was counselled about their behaviour.
The manager was concerned that no action had been taken and sought a review of action. The person conducting the first review interviewed an additional witness and recommended that the employee be investigated for suspected misconduct. The recommendations of this review were not acted on due to an oversight and the manager sought further review when they became aware of the lack of action. A second review found that the agency had dealt with the original harassment complaint and that no further action should be taken against the employee.
The Merit Protection Commissioner found that, notwithstanding the evidence of the new witness, the first review was an insufficient basis for reopening the decision not to investigate the employee for suspected misconduct. In the view of the Merit Protection Commissioner, the first reviewer reached a different conclusion on the same set of facts and there was no significant new information that presented the behaviour of the employee in a more serious light.
The Merit Protection Commissioner noted that the employee had been advised, following the harassment investigation, that there would not be an investigation of their behaviour as suspected misconduct. The Merit Protection Commissioner commented that, notwithstanding the manager's interest in this matter, the agency's primary consideration must be whether there was a sufficient basis to investigate the employee for suspected misconduct and whether to reopen this decision would have been fair to the employee whose behaviour was the subject of the complaint.
The Merit Protection Commissioner's better practice guide Not Just About Process: the review of actions scheme notes that complainants may have a strong preference for pursuing a matter formally, including through an investigation of a colleague for suspected misconduct. However, the complainant's view will not be the factor that determines whether a matter is investigated for suspected misconduct. Their status is that of a witness and their view of the seriousness of what they are alleging will not necessarily influence the outcome of a decision whether or not to investigate.