Merit Protection cases shaping APS discipline

By The Mandarin

Wednesday February 7, 2018

A public servant who pleaded guilty to unauthorised disclosure was entitled to respond to the same accusations separately in their employer’s administrative proceedings, according to the merit protection commissioner.

By giving a sense of how previous cases have played out, the reports published by the MPC provide a valuable resource for Australian Public Service managers who find they have to mediate internal complaints or run disciplinary proceedings.

In one of two recent cases, highlighted this week in the February edition of APS News, an APS agency launched a code of conduct investigation into suspected “behaviours including the unauthorised publication of Commonwealth material” and the employee was also charged under the Crimes Act over the same matter.

The employee asked if they could wait until the criminal case was finished to respond to their employer’s investigation into what were essentially the same allegations, “to preserve their right to silence” according to the new case report.

When the employee entered a guilty plea in court, the agency decided they had breached the code without giving another opportunity to respond. According to the commissioner, that wasn’t fair:

“The Merit Protection Commissioner considered that this amounted to a failure to provide the employee with a fair hearing. The agency should have provided the employee with a further opportunity to respond to the misconduct allegations, in circumstances where the employee was no longer constrained by a desire to preserve their right to silence. The agency agreed with the Commissioner’s decision and set aside its determination.”

What is harassment?

Harassment generally refers to behaviour that has an element of repetition to it, but this is “not always” the case in the world of the APS, according to the official advice.

In a second case study, a single negative comment made about someone behind their back was considered to meet the standard for harassment by the decision-makers in one agency.

The remark the employee made was along the lines that her male colleague was chauvinist and had no respect for women,” the case report explains. “The remark was overheard by another person in the work area.”

The agency found she had breached its bullying and harassment policy, as well as the code of conduct, and failed to uphold the APS values.

Her punishment for this alleged harassment: “The agency imposed the sanction of a reprimand.”

The employee appealed. She argued the ruling was incorrect and countered with claims that a previous complaint she had made about the alleged “chauvinist” behaviour was ignored.

“She contended that she was having a private conversation, the conversation could not have been overheard and the comments she made were true — she had made complaints about her male colleague’s behaviour and management had not followed up on them.

“The employee also contended that an investigation was out of proportion to the incident and the matter should have been handled at the local level.”

The merit protection commissioner found that making a one-off comment that was not directed to the man or said in his presence was not harassment. “Although the comment was overheard by a third person, and the male colleague subsequently became aware of it, the comment was not of a degree that constituted harassment.”

On the other hand, the MPC found the comments were “neither respectful nor courteous” and therefore amounted to two breaches of the code of conduct. The agency accepted the recommendations.

As for the employee’s claim that she had previous complained about her male colleague’s behaviour, the agency bosses said the man had never been investigated for “inappropriate comments about women” and that nobody else had made similar complaints against him. In the end:

“The Merit Protection Commissioner considered that even if there was substance to the employee’s allegations she did not have licence to make disparaging comments to co-workers.

“If the comment had been … made to someone in authority in the agency as part of a sincere strategy to have reasonable concerns addressed then the matter might have been different. But this was not the case here.”

New commissioner yet to be appointed

There are 10 case studies in total from the 2016-17 financial year on the MPC website, along with many others from previous years, with titles highlighting the issues considered.

These reviews “when handled strategically can provide ‘moments of truth’ – insights into how corporate and policy statements work in practice,” says the outgoing commissioner Annwyn Godwin. “The agency says X, but the individual experience is of Y.”

Godwin wrapped up her term at the end of 2017 to become the chief executive of the new Independent Parliamentary Expenses Authority. Mark Davidson is currently the acting commissioner.

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