Code of Conduct case - Employee found not to have engaged in misconduct in providing referee report

An employee’s obligations as a referee – has the employee breached the Code of Conduct?

An APS employee provided referee reports for colleagues whose work she quality assured. The employee was found to have breached the following elements of the Code of Conduct:

  • section 13(2) – the requirement to act with care and diligence and
  • section 13(9) – the requirement not to provide misleading employment information

for providing referee reports for colleagues when she was neither their supervisor nor team leader.

The employee received a fine as a sanction.

The case against the employee

The Code of Conduct decision maker made the following findings of fact:

  • The employee did not have a supervisory role with respect to the two colleagues for whom she provided referee reports (the candidates)
  • The employee answered questions on the referee form about activities the candidates had done ‘under her supervision’ and made observations about their capability and performance that were more appropriately made by a supervisor
  • The employee knew the candidates were asking for references because they did not trust their team leaders to give fair references
  • The employee’s actions ‘prevented’ the selection committee from having access to the team leaders’ more comprehensive knowledge of the candidates’ performance and capability.

In summary, the case against the employee rested on the proposition that it was inappropriate for the employee to provide referee reports. The implication in the decision was that the employee had provided misleading information for an improper purpose.

The employee’s arguments

The employee argued she was qualified to make observations about her colleagues’ capability in a referee report as she quality assured their work and she had not provided misleading information either about her role or the capabilities of the candidates.

MPC assessment of the case

There was no evidence on the misconduct file that any harm had come from the employee’s actions, for example that the candidates were promoted when they should not have been. There was also no information about:

  • The weighting the selection committees gave the employee’s referee reports, including whether the selection committees believed the employee to be a supervisor
  • The other evidence the selection committees had about the candidates, including other referee reports
  • Whether the candidates had nominated their team leaders as referees.

The Merit Protection Commissioner considered the employee had done nothing inappropriate in providing a referee report:

  • when she was not a supervisor and
  • where she suspected the candidates did not wish to ask their team leaders for references.

The agency’s recruitment policy did not preclude candidates from nominating people other than their supervisors as referees. The Merit Protection Commissioner noted that selection panels would generally request references from a candidates’ current supervisor. However, consistent with APS recruitment practice, it is open to candidates to nominate whoever they wish as referees. The Merit Protection Commissioner observed that candidates may, appropriately, nominate people who are not their supervisors but have relevant comments to make on aspects of the candidate’s work, for example internal or external stakeholders and peers.

The Merit Protection Commissioner also observed that the issue of who is an appropriate referee is something the selection committee needs to determine, in discussion with candidates. It is not something for which a referee has responsibility. On this basis, the Merit Protection Commissioner concluded that the employee had not breached any recruitment rules or policy in agreeing to be a referee.

The agency failed to establish the employee provided misleading information in the referee reports. The employee described her role accurately as a quality assurance officer not a supervisor. She made observations about the quality of the candidates’ work, behaviour and attendance based on her specialist knowledge and observation. The Merit Protection Commissioner noted that, as a quality assurance officer, the employee may well have had greater insight into the quality of the candidates’ work than their team leaders.

The Merit Protection Commissioner considered it was the responsibility of the selection committees to assess the employee’s referee comments and ratings and decide what weight to give them. Even a cursory reading of a referee report is usually sufficient for a selection committee to identify whether the ratings given by the referee are supported by the examples and comments provided by the referee. Importantly, the agency provided no evidence that either selection committee was misled by the employee’s referee reports.

The Code of Conduct decision maker concluded that the circumstances in which the employee gave the referee reports magnified the seriousness of her behaviour. These were that the employee had reason to believe the candidates were trying to avoid asking their team leaders for references.

The Merit Protection Commissioner noted that neither candidate was interviewed for the misconduct investigation and there was no direct evidence that they were trying to avoid asking their team leaders for references. However there was evidence the employee thought this may have been their intention.

The Merit Protection Commissioner considered that, nevertheless, this did not preclude the employee from providing referee reports provided she did not misrepresent her position and made honest comments based on her observation. In the Merit Protection Commissioner’s opinion, she did not misrepresent her position and there was no evidence to suggest she provided misleading information.

Conclusion – agency decision makers should question their assumptions before judging the conduct of others This matter highlights the importance of agency conduct decision makers examining their assumptions critically. In this case, the assumption that only a supervisor should provide a referee report was incorrect and was supported neither by the recruitment policy or general recruitment practice.