Code of Conduct sanction decision—applying the limit on fines in Regulation 2.3

An employee was found to have breached the Code of Conduct for speaking inappropriately to and about his supervisor, including swearing. The employee was found to have breached four elements of the Code of Conduct for this behaviour. The agency imposed a fine of 1% for each element of the Code that was breached.

The Merit Protection Commissioner recommended that the sanction decision be set aside as it did not comply with the limitations on the power of a delegate to impose sanctions, as set out in Public Service Regulation 2.3.

Regulation 2.3 provides that, where a sanction of a fine is imposed under section 15(1)(e) of the Public Service Act, the deduction must be no more than 2% of the employee's annual salary. In this case, the fine totalled 4%.

A finding of breach consists of two things—the facts relating to the behaviour of the employee (what the employee did during particular incidents of inappropriate behaviour) and the elements of the Code that are breached by behaving in this way. The clear intent of the framework is that a sanction is directed at the particular behaviour found to have breached the Code. Accordingly, the effect of Regulation 2.3 is that an employee cannot be fined more than 2% for a particular behaviour found to be in breach of the Code, even where that behaviour involves a breach of several elements of the Code. Had the employee been found to have breached the Code of Conduct for separate behaviours, for example attendance fraud and discourtesy, or for separate incidents of behaviour, separate fines for each breach would have complied with Regulation 2.3.