Code of Conduct case—reduction in classification for breach of trust

An APS 6 employee who applied to the Merit Protection Commissioner for review of actions had been reduced in classification to APS 5 for misconduct that included dishonesty in regard to an absence from work.

The misconduct related to an incident when, on return from lunch, the employee went to another area of the office rather than return to their work area, where they spent some time on the telephone attending to non-work-related matters. When emailed by a manager about their failure to participate in a meeting, the employee replied that they were in another meeting. The employee then asked a junior colleague who was a friend to 'cover' for them. The employee subsequently repeated the claim that they were in another meeting to the manager the next day. After it came to light that the employee may not have been truthful about their whereabouts, the employee was directed not to discuss the matter with anyone they perceived may have been involved. The employee then sent text messages to the junior colleague that the colleague found to be inappropriate.

Given the employee's senior role and the seriousness of the event, the agency decided to investigate the employee for failing to act with honesty and integrity in regard to an absence, using influence as a team leader to request a junior colleague to provide incorrect information in regard to this absence, failing to comply with a direction not to contact that junior colleague about the matter, and failing to act with respect and courtesy by sending inappropriate text messages to the junior colleague.

The employee acknowledged the seriousness of their actions in misleading their manager and apologised, noting that the behaviour was out of character and that there were mitigating circumstances leading to the actions. The employee disputed that the text messages had breached the Code submitting that, while they may have been inappropriate, they were sent after work hours and did not relate to the working relationship. The employee later stated that they did not believe their actions had breached the Code as they were a reflection of an illness and they did not have the mental capacity to behave as expected of a well person.

The Merit Protection Commissioner upheld the agency decision that the employee had displayed a lack of honesty when the employee did not reply truthfully to the manager on two occasions. The employee also displayed a lack of integrity, and had improperly used their influence as a team leader by asking the junior colleague to cover for their absence after they had lied about their whereabouts. With regard to the text messages, the Merit Protection Commissioner found that they clearly referred to the matter of the employee's absence from work and, as such, the employee had been acting 'in connection with APS employment' when sending them. By sending them, the employee had failed to act with respect and courtesy, and failed to follow a direction not to make contact with the junior colleague about the absence matter.

In considering the employee's claims that they had not breached the Code as their actions were due to their ill-health, the Merit Protection Commissioner noted that, even if an employee suffered from ill-health, it does not prevent their behaviour from constituting a breach of the Act. The Code of Conduct provides a single standard of conduct for all employees. The extent to which health factors may have influenced an employee's conduct may, however, be relevant to the issue of sanction.

In considering sanction, the Merit Protection Commissioner looked at a number of relevant factors, including the very serious nature of the misconduct—which it was considered had severely undermined the agency's confidence in the employee's ability to perform their duties at the APS 6 level—and the employee's response to the misconduct, as well as information about the employee's health and financial situation. The Merit Protection Commissioner did not consider there was evidence that the employee's health issues should be considered a major mitigating factor and, in all the circumstances, concluded the appropriate sanctions were a reduction in classification to APS 5 (top salary point) and a reprimand.