Code of Conduct case—a harsh sanction decision

Disclaimer

The following case summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice

A supervisor was found to have breached four elements of the Code of Conduct, including section 13(3) of the PS Act—'An APS employee … must treat everyone with respect and courtesy, and without harassment'. The supervisor was found to have breached the Code for the way they conducted discussions with subordinate staff about work related matters, including standard of dress and attendance. The supervisor was found also to have raised their voice and handled discussions in a clumsy and unprofessional manner.

The agency imposed a sanction of a reduction in classification from Executive Level 1 to APS 6. In making the decision, the decision-maker considered a number of aggravating factors, including that the supervisor had failed to show remorse by apologising to the staff members concerned and that one staff member had successfully sought workers' compensation for psychological injury on the basis of their interactions with their manager.

The Merit Protection Commissioner found that the sanction imposed was too harsh and recommended that it be varied to a reduction in salary. The agency accepted the recommendation.

In the view of the Merit Protection Commissioner, the proven behaviours were relatively minor acts of discourtesy that were not sufficiently serious to warrant a reduction in classification. The Merit Protection Commissioner also considered that there were significant mitigating factors, including that the supervisor was a newly promoted and inexperienced manager when the behaviours occurred, was managing a challenging team in which there were staff with performance, attendance and behavioural problems and the manager had received little practical support and guidance from more senior managers.

The Merit Protection Commissioner was also of the view that the successful compensation claim was not an aggravating factor. The Commonwealth compensation scheme is a 'no fault' scheme and Comcare accepts claims where it is satisfied that the employment situation contributed to an employee's perception that they were bullied and harassed. While a complainant's perception is a relevant consideration, in the view of the Merit Protection Commissioner, agency decision-makers in Code of Conduct matters need to make an independent judgement of the seriousness of the behaviour of the employee under investigation. The fact that a workers' compensation claim had been accepted in this case did not demonstrate that the behaviours found to have been in breach were, in fact, serious.