An employee who was a team leader was found to have breached a number of elements of the Code of Conduct for requesting topless photographs from a junior member of his team and for lying to his manager about his behaviour. The employee was reduced in classification.
The employee argued that the behaviour was private behaviour between consenting adults. It had not offended the junior member of his team, who had found it funny and had willingly complied with the requests. The employee apologised for lying to his manager, arguing that it was done before he was aware that he was under investigation and that he lied to protect the reputation of his junior colleague.
The Merit Protection Commissioner found that the conduct had occurred in the course of employment as the majority of requests for photographs occurred in the workplace and the photographs were viewed in the workplace.
The Merit Protection Commissioner also found that the behaviour was a breach of the requirement in section 13(3) of the Code of Conduct to treat others with respect and courtesy. The Merit Protection Commissioner noted that the standards in the Code of Conduct were objective, not subjective standards. Even though the junior team member was not offended by the requests, the Merit Protection Commissioner was of the opinion that a reasonable observer would conclude that such behaviour was lacking in respect and courtesy. This is because the behaviour failed to demonstrate professional esteem and regard for the junior colleague and was behaviour that in many contexts, including a professional workplace, would be considered impolite.
When considering sanction, the Merit Protection Commissioner noted that there was evidence that the employee tolerated and indeed participated in unprofessional behaviour with his team more generally, including sexual innuendo. The Merit Protection Commissioner considered that the employee's requests for photographs were characteristic behaviour.
The employee argued that had he known that he was under investigation he would have been truthful. The Merit Protection Commissioner noted that the employee had an obligation at all times to be truthful to his employer about matters relating to his employment, not just in the circumstances of a formal investigation.
The Merit Protection Commissioner viewed the behaviours as very serious and considered that they potentially warranted termination of employment, except for the existence of significant mitigating factors relating to the employee's personal circumstances and that he had no previous findings of misconduct. The Merit Protection Commissioner therefore confirmed the sanction of a reduction in classification.