Code of Conduct sanction decision—reduction in classification

An employee was reduced in classification to Executive Level 1 for sending an email to a colleague that was aggressive and offensive in nature. The employee acknowledged the breach of section 13(3) of the Code of Conduct but argued that the sanction was extreme and not commensurate with the breach.

The Merit Protection Commissioner considered the nature and seriousness of the conduct and a previous warning about the inappropriate tone of some of the employee's emails. The employee accepted that the email had been intemperate, but did not accept that it had been harassing. However, it was the opinion of the Merit Protection Commissioner that a reasonable person would conclude that the email to the colleague would humiliate and offend and also cause unnecessary hurt and distress. That the employee would send such an email, having previously been warned about sending inappropriate emails, demonstrated that they were dismissive of, or uncaring about, any offence the email may have caused and that the behaviour was characteristic. A concern therefore remained that the behaviour might be repeated.

The employee raised a number of mitigating circumstances, including that the email needed to be considered in context, which included the particular work environment; that the recipient was a peer and not a subordinate; and that the relationship was complicated. The Merit Protection Commissioner accepted that the employee's relationship with the recipient was complicated, but noted that employees were still required to act in a way that was respectful and courteous, regardless of the employee's views about the relationship or the fact that the recipient was a peer. The Merit Protection Commissioner also did not accept that the use of 'rugged' language in the workplace excused using language towards an individual that was personalised, belittling and offensive.

The employee also disputed that they had failed to demonstrate leadership behaviour, and provided references as evidence of their leadership and management skills. The Merit Protection Commissioner considered that a senior employee could have been expected not only to be fully aware of the effect of their behaviour in the workplace but also to take on board feedback from managers. Employees at Executive Level 2 are expected to be able to see things from other people's perspectives, anticipate their reactions and use appropriate strategies to resolve conflicts. It was found that the employee did not demonstrate leadership behaviour in these respects.

The Merit Protection Commissioner considered that a further reduction in classification to the APS level might have been warranted but for other factors, including a medical condition and positive character references. In all the circumstances, the Merit Protection Commissioner was satisfied that the reduction in classification to an Executive Level 1 was an appropriate sanction.