Review case - Observations on principles based decision making and the APS policy framework

Observations from the case work about the APS employment policy framework

The Merit Protection Commissioner encourages agencies to make principles based employment decisions and in doing so to consider the broader APS policy framework.

Two policies have received focus in casework this year. The first is the APS Mental Health strategyWorking together: promoting mental health and wellbeing at work. The strategy aims to build an inclusive workplace culture for people with mental illness. Mental illness can feature in both performance management and Code of Conduct matters. There is a single standard of behaviour for APS employees. The usual approach during a Code of Conduct investigation is to consider mental illness as a possible mitigating factor when making a decision on sanction.

However, in keeping with the APS Mental Health strategy, agencies are encouraged to consider whether a Code of Conduct investigation is the most effective and appropriate response to inappropriate behaviour which would appear to be the result of mental illness. In some cases, working with the employee and their treating doctors to assist the employee to manage the impact of their illness on the workplace may be more effective and appropriate response. This might include where no harm has been done to the agency by the conduct, the behaviour is uncharacteristic and the employee had not, at the time of the behaviour, had a diagnosis of mental illness.

The second policy is the Gender Equity strategy and whether long standing practices may require reconsideration in light of the strategy.

Agencies have a discretion, in exceptional circumstances, to grant paid maternity leave when an employee is on leave without pay. Agencies generally exercise this discretion only in limited circumstances for example where the leave without pay is in the interests of the Commonwealth or the agency was in some way the cause of the employee’s loss of entitlement.

The cautious approach to the exercise of the discretion appears in part to reflect past experience and practice, including concerns about employees structuring their leave arrangements so that they obtain an entitlement to paid leave.

The APS Gender Equity Strategy  focuses on supportive cultures and flexible working arrangements. It provides a framework for delegates to look more flexibly at the circumstances of individual employees. Paid maternity leave is only available to women who are working. However, in order to balance work and family commitments, APS employees may be both on leave without pay but working under other contractual arrangements for the Commonwealth. The changing nature of the workplace raises the question of whether delegates should give greater consideration to the beneficial application of the discretion where women are still engaged in employment for the Commonwealth while they are on leave without pay to meet family commitments.