Employee misconduct: how to make ‘independent’ decisions

By John Wilson

Monday July 20, 2015

It is trite to state that any delegate appointed as decision maker in APS misconduct proceedings needs to bring an independent and open mind to the matter. But what does this actually mean?

More often than not, agencies correctly appoint someone who does not have an obvious conflicting interest in the outcome of the misconduct investigation. Failure by the agency to do so, of course, can result in delegates’ decisions being set aside on the basis of reasonable apprehension of bias, or actual bias.

However, the mere appointment of someone not involved with the employee or the subject of the alleged misconduct, is not enough to satisfy the requirement of being an independent decision maker. In our practice, we see at least two other common errors in this regard.

The first set of errors arises in situations where agency procedures for handling suspected misconduct allow for the appointment of an investigator separate to the breach decision-making delegate. There is nothing wrong with the toil of an investigation into the messy facts of an employee misconduct allegation being tasked to an investigator, either internal or external to the agency. The precise role of that investigator will be set out in agency-specific procedures. However, upon receipt of the investigator’s report, an independent breach or sanction delegate cannot simply rubber stamp the investigator’s report, and blithely adopt any recommendations contained therein as their own.

“A proper independent breach and sanction delegate should not adopt a mindset of being out to ‘get’ the employee …”

In the complex landscape of APS employment law, investigating allegations of public service misconduct is a difficult exercise in compliance, (amongst other things) and its erstwhile practitioners have been known to err at times: see for example Lohse v Arthur, McKinnon, Coppin (No 3) [2009] FCA 118 2 October 2009. An independent delegate must turn a critical eye to the investigator’s report. While delegates do not have to commence their own second investigation, they must make some independent assessment of the thoroughness, logic, procedural fairness, evidence (or lack thereof) contained in the report of the investigation, before making their decision. With care, decision-makers can make determinations that deviate from recommendations contained in an investigator’s report, and occasionally this may even require that no breach can be found, or that a new investigation needs to take place. C’est la vie. Although frustrating, this is proper process at work.

The second set of errors arises where the decision maker fails to understand that since at least the High Court decision in Commissioner of Taxation v Day (2008) 236 CLR 163 at [34]-[35] and probably since NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-184, the underlying purpose of all APS employee civil disciplinary powers is to protect the agency, not to punish an employee. This characterisation should have quite a profound impact on the disciplinary decision making process. A proper independent breach and sanction delegate should not adopt a mindset of being out to “get” the employee: a mindset reflected in delegates who allow the imposition of the most number of Code breaches arising from the same facts, or who allow fishing for extra allegations, or who allow the imposition of a maximum sanction for a proven breach.

Instead, the law requires that delegates approach decision making from a position of neutrality and disinterest, and are motivated only to determine that which is genuinely necessary to protect the integrity and interests of the agency (or the APS). Such a mindset results in reasoned and proportionate decision making.

Truly independent decision making is critical to ensuring the proper exercise of a delegate’s role, and a procedurally fair outcome for the employee the subject of the misconduct investigation. Defensible decision making starts there.

Read more at The Mandarin: Coding the line between work and play

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