Review case—whether an allegation of bullying should have been investigated as misconduct

An employee made serious allegations of bullying and harassment against his manager which were referred to the agency's misconduct investigation unit. A consultant was engaged to conduct a preliminary investigation. After considering the consultant's report, the decision-maker decided not to investigate the manager for suspected misconduct and recommended other strategies to address the behaviour.

The employee sought review internally in the agency in the first instance (a primary review). That review concluded that the process followed was consistent with agency guidelines. It did not look at the merits of the decision not to commence misconduct action. For that reason, the employee sought review by the Merit Protection Commissioner.

The Merit Protection Commissioner does not always review complaints about an agency's failure to investigate an employee for suspected misconduct. The review of actions scheme is established by section 33 of the Public Service Act 1999. Subsection 33(1) of the Act provides that an APS employee is entitled to review of an action 'that relates to his or her APS employment'. The person most affected by a decision to conduct a misconduct investigation is the person who is the subject of the allegations. However, other employees' rights and interests may also be affected. One employee may report suspected fraud because it is their duty to do so and not because the fraud has affected the employee at work. Another employee may report bullying behaviour because they have a duty to do so but also because the bullying behaviour has been directed at them and is affecting them at work.

The Merit Protection Commissioner takes the view that where a review applicant is a person who has made allegations of bullying that have affected them personally, the review applicant has sufficient personal interest to establish an entitlement to review of the decision of how the allegations were dealt with. The Merit Protection Commissioner noted that the decision maker gave no reasons for dealing with the allegations through informal management intervention rather than as suspected misconduct. This was concerning given the evidence gathered in the preliminary investigation and the seriousness of the allegations. Accordingly, the Merit Protection Commissioner recommended that the decision be set aside and the preliminary investigation report be referred to a new decision-maker. The agency accepted the recommendation