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Last updated: 18 October 2006

Case studies

Case study 1:
Breach of the APS Code of Conduct—failure to report suspected misconduct by another employee

Application

An APS employee, an Executive Level 2, applied for review of a decision that they had breached the APS Code of Conduct, in particular:

Review

Having reviewed the matter, the Merit Protection Commissioner was satisfied that, on occasion, the applicant had used the agency’s email facilities to correspond with the two persons in question. For example, after reviewing their website for spelling, grammar and readability, the applicant made some suggestions in that context and also sent them a standard services contract that the applicant had drafted for them. However, the actual work involved in reviewing the website and drafting the contract was performed in the applicant’s own time; the relevant policies of the agency in question allowed reasonable personal use of telephone, email and internet services, subject to technical, operational and security considerations; and the agency accepted that the volume of the email involved was “minimal”. Also, there was no evidence that, in drafting the contract or reviewing the website, the applicant had actually used any “APS information”—the assistance the applicant provided in these matters was no more than any lawyer could do, particularly one from an English-speaking background.

In the circumstances, the Merit Protection Commissioner could not be reasonably satisfied that the applicant had breached the agency’s policies on the use of computer resources, nor that the applicant had used APS information to help establish a private business. Also, as there was insufficient evidence that the proposed business was established with the aim of supplying goods or services to the applicant’s agency, the Merit Protection Commissioner could not be reasonably satisfied that, in assisting two friends in a private capacity, the applicant had a conflict of interest.

The more important issue in this case was whether the applicant breached the APS Code of Conduct by failing to report to senior management that one of their friends, who also was an APS employee, had a potential conflict of interest. The decision under review included a finding that the applicant knew that the friend’s activities might involve them in a conflict of interest.

Whether there is a duty to report suspected breaches of the APS Code of Conduct will depend on the circumstances of the case. Under the common law contract of employment, there is no general duty to report a fellow employee’s misconduct, or even to disclose one’s own misconduct. However, a duty to report suspected misconduct may arise as part of the implied duty of loyalty and good faith where the employer’s property is involved, or where an employee is in a position of responsibility or trust, such as in a managerial or supervisory role.

Given the relevant statutory framework, a higher standard may apply in the APS. One of the APS Values is that “the APS has the highest ethical standards” (paragraph 10(1)(d) of the Act refers) and subsection 13(11) of the Public Service Act provides that “an APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS”. This indicates that, even if there were no general duty on APS employees to report suspected breaches of the APS Code of Conduct, a duty to report will arise in particular circumstances. In assessing whether an employee has a duty to report suspected misconduct, case law suggests the following factors would be relevant:

In this case, there was no mention of a “duty to report” in the relevant agency’s instructions or policies. Regarding the nature and seriousness of the alleged breach, there were differences of opinion within the management of the agency whether the employee in question actually had a conflict of interest, and there was no suggestion of fraud. Also, the applicant was not responsible for the conduct of that employee as they worked in a different area of the agency. On the other hand, the applicant was an EL2 employee and, as such, performed a managerial role. In particular, as a section head in the procurement area, the applicant should have appreciated the heightened potential for conflict of interest in procurement-related matters.

Outcome

For these reasons, the Merit Protection Commissioner agreed that the applicant had breached the Code of Conduct, but only on one count—for failing to report that one of their friends, who also was an APS employee, had a potential conflict of interest. As an EL2 section head, the applicant could reasonably have been expected to be aware of their responsibilities as a manager. In the alternative, at the very least, they should have sought advice in the matter.

In the circumstances of the case, the Merit Protection Commissioner recommended that, instead of a sanction being imposed for that breach, the applicant be counselled in relation to their duty to report suspected breaches of the APS Code of Conduct by other employees. In accepting the recommendation, the agency advised that it believed that a fair outcome had been achieved and thanked the Commissioner for his assistance.

Case study 2:
Breach of the APS Code of Conduct—reduction in classification for six months not valid as sanction

Application

In this case, an APS employee, an Executive Level 2, applied for review of a decision that, by misusing their agency’s computer resources, they had breached the APS Code of Conduct and of the sanction imposed on them for that breach—a reduction in classification, to EL1, for six months.

Review

The first-mentioned decision was made more than a year before the application for review was lodged. In this context, regulation 5.23(3) of the Public Service Regulations provides among other things:

“Also, the action is not or ceases to be, reviewable action if the person or committee that is, or would be, conducting the review considers that the action should not be reviewable for any of the following reasons:

  1. the application for review of the action is made more than 1 year after the action happened, or did not happen, and there are no exceptional circumstances explaining why the application was not made within the year;”

Consequently, the Merit Protection Commissioner advised the applicant that, unless they could demonstrate exceptional circumstances explaining why their application for review of the decision that they had breached the Code of Conduct was not made within the year, no further action would be taken in relation to that matter. In the event, no such circumstances were demonstrated.

More importantly, the sanction imposed on the applicant for the breach in question, a reduction in classification for six months, was not a sanction available under subsection 15(1) of the Act. Generally, once an employee’s classification has been validly reduced, any move back to the higher classification can occur only by way of promotion (this may be contrasted with a reduction in salary which may, and usually would, be expressed as applying to a specified period). The APS statutory employment framework requires that certain mandatory procedures be complied with before a promotion can occur.

In this context, in another case, the Australian Government Solicitor had advised:

“We do not think, however, that a reduction in classification can be made to operate only for a specified period. We think this sanction is intended to operate until it is worked out – until, for example, the employee is able to secure for themselves a higher classified  job. Unlike a re-assignment of duties at level, a higher classification is not something an Agency Head can give an employee at will. The PS Act framework requires certain procedures to be gone through before a promotion can occur. We do not think a reduction in classification can function as a temporary demotion.”

As an exception, where two classification levels are broadbanded within an agency, there may be other considerations as a move between two classifications in a broadband, if permitted under the relevant certified agreement or AWA, would be excluded from the definition of promotion in direction 4.6 of the Public Service Commissioner’s Directions 1999. However, EL1 and EL2 classifications had not been broadbanded in the relevant agency.

Outcome

Consequently, the Merit Protection Commissioner advised the agency that:

Case study 3:
Breach of the APS Code of Conduct—inappropriate behaviour influenced by medical condition

Application

An APS employee applied for review of a decision that, by sending inappropriate email messages to senior management and thereby failing to treat them with respect and courtesy and without harassment, they had breached subsection 13(3) of the Act. This was the latest in a number of similar messages about which the applicant had previously been counselled, reprimanded, directed to attend the Commission training course ‘Understanding APS Values’ and had authority to use email suspended for four months. For the latest breach, the applicant was fined $1230 and required to attend another training course on the APS Values and Code of Conduct.

The applicant argued among other things that at least some of the emails in question could not have been disrespectful as they were “statements of fact”. In particular, as the applicant believed that their divisional head had lied to them, calling the divisional head a liar was “factual” and therefore could not be disrespectful.

Review

The Merit Protection Commissioner sought to explain to the applicant that all APS employees are bound by the APS Values and Code of Conduct. Specifically, subsection 13(3) of the Act provides:

“An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment”.

While the Act does not define these terms, there are general community standards in such matters and they apply to the APS too. There is little doubt that the community expects a standard of behaviour that allows each of us to go to work each day and carry out our duties, including interaction with our co-workers, without having our personal dignity diminished. Also, it would be impossible for a workplace to function effectively if employees were permitted to launch discourteous and disrespectful personal attacks on co-workers and managers where the employer, through its management team, took a decision with which an employee disagreed.

It can never be appropriate to send emails or letters couched in discourteous terms or to speak to or about any other APS employee in a discourteous or disrespectful manner. To accuse a manager, or any other employee, of being dishonest and untrustworthy, or to attach other disparaging labels to them, demonstrates a lack of respect and courtesy, no matter how strongly one may hold to those views. This does not mean that reasonably robust discussion cannot take place in a work environment, but a line must be drawn where a reasonable person would feel insulted or aggrieved. The Merit Protection Commissioner did not see it as an excuse that the applicant held strong views of the shortcomings of others or that this would mitigate the applicant’s responsibility to act with respect and courtesy in the workplace.

Where an APS employee has a dispute with another employee or is aggrieved by a management decision or action, there are clearly defined review or dispute resolution provisions in the Public Service Regulations and various agency certified agreements and these should be used in a constructive manner.

In response, the applicant referred to their medical condition; in effect, that they suffered from chronic depression. In this context, the Merit Protection Commissioner noted that the Australian Government Solicitor had advised in another case that the APS is entitled to demand appropriate standards of conduct, even where an employee’s inappropriate behaviour is influenced by medical conditions, and that generally this will not give rise to issues of unlawful discrimination on the ground of disability.

Outcome

The Merit Protection Commissioner recommended that the decisions under review, both in relation to the breach and in relation to the sanction, be confirmed.

Case study 4:
Breach of the APS Code of Conduct—bullying and harassment by an office manager

Application

An APS employee, an Executive Level 1, applied for review of a decision that, by inappropriate behaviour over many months, they had breached the Code of Conduct—in particular, subsection 13(3) of the Act, which provides that:

“An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment”;

and of the sanctions imposed on them for the breaches in question, a $250 fine and a reprimand.

The applicant argued among other things about the definition of ‘harassment’ and that, during the investigation conducted by their agency, they were denied procedural fairness. In particular, the applicant claimed that the investigator took into account, but did not make the applicant aware of, certain information that the investigator obtained after the interview with the applicant.

Review

Dealing with the procedural issues first, the Merit Protection Commissioner was satisfied that—at least to the extent that the review under the Public Service Regulations provided the applicant with additional opportunity to respond to the substantive evidence on which the conclusions that they had breached the Code of Conduct were based—the applicant was, eventually if not earlier, given adequate opportunity to present their case.

As for what is ‘harassment’, as the matter is generally understood in the Commission, workplace harassment:

In this case, the applicant was found to have intimidated, lectured and hectored junior staff; inappropriately contacted them at home while they were on sick leave; intensively questioned one of them after one day’s leave taken to support their partner during a critical medical procedure; and inappropriately questioned another on return from sick leave, within the hearing of other staff.

As for the sanctions imposed on the applicant, the Merit Protection Commissioner noted that, generally, imposing sanctions for breaches of the Code of Conduct is not primarily about ‘punishing’ an employee who has failed to meet the required standards of conduct but is intended to operate as a deterrent to others and to confirm that inappropriate conduct is not tolerated in the APS. Also, the more senior the employee, the more they are expected to exemplify the APS Values and Code of Conduct and hence respect and courtesy in their behaviour.

Given the management role the applicant exercised at the time of the relevant incidents, not to mention their training as Harassment Contact Officer, the Merit Protection Commissioner concluded that the reprimand and a fine of $250, both of which are at the lower end of sanctions provided for in section 15 of the Act, could not be said to have been too severe in the circumstances of the case.

Outcome

The Merit Protection Commissioner recommended that the decisions under review, both in relation to the breach and in relation to the sanctions, be confirmed.

Case study 5:
Complaint by former employee—section 72 of the Public Service Act 1999—payment in special circumstances

Application

Section 73 of the Act provides among other things that the Public Service Minister may authorise the making of one or more payments to a person, up to $100,000 in total, where it is appropriate to do so because of special circumstances that relate to, or arise out of, the payee’s employment by the Commonwealth. This power has been delegated to agency heads.

In this case, a former APS employee complained that, because of mistakes by their agency, their income in retirement was less than they could reasonably have expected. The former employee’s complaint was referred to the Merit Protection Commissioner by the Commonwealth Ombudsman and investigated under regulation 7.2 (Investigation of complaints by former employees).

Review

The applicant resigned from the APS after some 23 years of service. Before then, for a lengthy period, the applicant performed shift work at the APS6 level and became eligible to have their salary for superannuation purposes increased by the amount of a shift allowance. Subsequently, the applicant was promoted to an EL1 job and, from that date, they were no longer receiving shift allowance and this had implications for their superannuation. Then, after receiving the applicant’s intended resignation letter, the agency discovered certain errors affecting the applicant’s salary for superannuation purposes and advised ComSuper accordingly—but not the applicant. In fact, the applicant was not informed of these errors until after their resignation took effect and then only indirectly by the inclusion of a ‘refund of overpaid super contributions’ in a letter from the agency setting out their final entitlements. Because of those errors, the applicant’s salary for superannuation purposes had been materially overstated for some years.

The applicant’s financial plans for retirement were made with regard to ComSuper annual statements they received over the previous three years. These turned out to be incorrect because of the errors by the agency (which the agency admitted and later apologised for). In the event, the applicant’s actual superannuation pension was about $3,000 a year less than they could reasonably have expected. However, when the applicant applied to the agency for compensation under the CDDA (compensation for detriment caused by defective administration) scheme, their application was rejected on the following grounds:

In this context, the Merit Protection Commissioner noted that ComSuper PSS annual member statements clearly included the advice that amounts on the statement were based on information supplied by employers and may be subject to adjustment. However, the purpose of such advices is to protect ComSuper from claims due to errors by employers and not the other way round.

The Merit Protection Commissioner also noted that, even though the applicant may, technically, be in receipt of their correct superannuation entitlements, they were receiving about $3,000 a year less than they had been led to expect from information provided to them for some years by their agency. The applicant used their annual ComSuper statements (which were based on information provided by the agency) to make key decisions about their retirement, including when to submit their resignation. Moreover, even though the agency discovered the errors when processing the applicant’s final entitlements before their resignation date, no advice was given to the applicant until after their resignation had taken effect. In other words, because of actions or inaction by their agency, the applicant was not able to reconsider their options while there was still time to do so.

Having considered the matter, the Merit Protection Commissioner concluded that, even if this case did not qualify for payment under the CDDA, it should be reconsidered under section 73 of the Act. As explained in paragraph 14 of APS Commission Circular 2004/4: “Payments in special circumstances under section 73 of the Public Service Act 1999”:

“A payment under section 73 might be made where the particular circumstances of a case lead to the publicly defensible conclusion that there is a moral obligation on the Commonwealth to make the payment.”

In the opinion of the Merit Protection Commissioner, this was such a case, particularly but not only in relation to the real financial detriment suffered by the applicant, due to the errors by their agency, in relation to lost opportunities to invest their excess superannuation contributions. The Merit Protection Commissioner also noted that, in Cornwell v Commonwealth [2005] ACTSC 14, the Court ordered the Commonwealth to pay the difference between the benefits paid or payable to the plaintiff and the benefits that would have accrued, less the expense of contributing to it, had he joined the superannuation fund in 1965–66 (when he would or could have joined it but for negligent advice by his agency). That decision was subsequently confirmed on appeal.

Outcome

For these reasons, acting under regulation 7.2(2), the Merit Protection Commissioner recommended that the agency compensate the applicant under section 73 of the Public Service Act for the detriment they suffered as a result of the agency’s errors. Subsequently, the agency advised the Merit Protection Commissioner that the recommendation had been accepted and that an offer of settlement had been made to the applicant.

Case study 6:
After injury applicant not fit to perform normal duties—whether entitled to payment of salary

Application

An APS employee applied for secondary review by the Merit Protection Commissioner of a decision that, after an injury to a finger due to which they were said not to be fit to perform their normal duties, they were not entitled to salary from December 2001 until August 2002 when they returned to work.

Review

After suffering an injury in October 2001, the applicant applied for compensation but Comcare denied liability. However, on appeal, the Administrative Appeals Tribunal (AAT) decided in December 2003 that the applicant was entitled to compensation, but only until December 2001. The applicant was subsequently medically assessed as fit for modified duties but no such work was found for them until August 2002.

In this context, section 40 of the Safety, Rehabilitation and Compensation Act 1988 requires employers to take all reasonable steps to provide employees who are undertaking, or have completed, a rehabilitation programme with suitable employment. What is “reasonable” or “suitable” in a particular case will of course depend on the circumstances of the case.

The applicant applied for review of this and related matters a number of times. Finally, in November 2005, the applicant’s agency decided that further review of the relevant action was not justified—regulation 5.23(3)(g) refers. The agency noted that the applicant had previously appealed to or applied for review not only to the Merit Protection Commissioner but also to the AAT and the Human Rights and Equal Opportunity Commission (HREOC).

In particular, in May 2003, the applicant applied to the HREOC for compensation alleging disability discrimination in employment, on the basis that the relevant agency had mismanaged their return to work and, in April 2004, the HREOC terminated the complaint on the ground that it lacked substance. The issues of disability discrimination in employment and inherent requirements of a particular job were discussed by the Full Bench of the Federal Court in Commonwealth of Australia v HREOC [1998] 3 FCA. In effect, an employer is not obliged by the Disability Discrimination Act 1992 to change the inherent requirements of a job to suit an employee.

Then, in March 2005, when the applicant sought to re-argue their case before the AAT, the AAT dismissed the application as frivolous or vexatious. The AAT agreed with the applicant’s agency that, in addition to the applicant having a clear sense of entitlement, both as to compensation and a job more fitting to their qualifications than the work they were engaged to do, the applicant had made no serious attempt to return to work during the relevant period.

In any case, in relation to the applicant’s entitlement to salary, as the Merit Protection Commissioner understands the general position under the common law of employment, if an employee is unable to do his or her particular job (that is, not some other job or any other work) because of illness or injury, then—subject to any statutory or contractual compensation entitlements and/or paid leave credits the employee might have, and unless and until they are found another job, their employer is not obliged to pay their salary. However, in certain cases, depending on their means, they might be eligible for some assistance from Centrelink.

In the applicant’s case, the applicant was not fit to perform their normal duties and, acknowledging that their redeployment might not have been handled as well as it could have been, no suitable alternative duties could initially be found for them by their agency. Consequently, once the applicant’s compensation entitlements ran out in December 2001, their subsequent entitlement to salary depended on their leave credits and—because the applicant had no paid leave credits left, they were not entitled to salary until August 2002 when they returned to work.

Outcome

Having considered the matter, the Merit Protection Commissioner agreed with the applicant’s agency that further review of the relevant action was not justified—regulation 5.23(3)(g) refers.

Case study 7: Site allowance payable to part-time employees—whether HR policy may be legally binding

Application

A part-time APS employee applied for secondary review by the Merit Protection Commissioner of a decision relating to the rate of site allowance they were entitled to while working in a remote locality. When the matter was first reviewed by the relevant agency, the agency head’s delegate did not accept the primary reviewer’s recommendation that the applicant be paid an additional amount.

Review

On review, it was established that the relevant certified agreement provided that:

“Regular part time employees will receive, on a pro rata basis (other than entitlements in the form of reimbursements, such as travel allowance or motor vehicle allowance), equivalent pay and conditions to those of a full time employee.”

However, following a review of site allowance, the agency endorsed a new remote site allowance policy which allowed employees in receipt of site allowance to seek recalculation of their allowance. The policy specifically provided that, to ensure equitable application of the allowance, the amount of the allowance would be calculated for eligible staff according to a prescribed formula.

In relation to part-time employees, the policy stated:

“When calculating the amount of the allowance for part timers the components in respect of leave fares and additional leave should be reduced to reflect the reduced hours of work. The DA (District Allowance) should be included at the full rate [emphasis added].”

In the applicant’s case, when recalculating the applicant’s allowances in November 2004, it appears that the agency had calculated their leave fares, additional leave and DA as if they were a full-time employee (a formula not fully consistent with the policy) and then pro rated this according to the certified agreement.

The Merit Protection Commissioner noted that the new site allowance policy, which is more beneficial to part-time employees than the certified agreement, was made after the certified agreement was negotiated and formally issued as the agency’s (Remote) Site Allowance Guidelines. It is of course open to the agency to change that policy, but not retrospectively.

In the meantime, however, it is the Merit Protection Commissioner’s view that, as a matter of fairness and equity to its staff, the agency should honour its published site allowance policy. Further, it is in any event possible that a court would regard such HR policies as legally binding—see, for example, Nikolich v Goldman Sachs J B Were [2006] FCA 78 of 23 June 2006.

Outcome

For these reasons, the Merit Protection Commissioner recommended that the agency recalculate the applicant’s site allowance in accordance with its (Remote) Site Allowance Guidelines. Subsequently, the agency advised the Merit Protection Commissioner that the recommendation had been accepted.

Case study 8:
Re-assignment of duties under section 25 (for reasons other than misconduct)

Application

An APS employee applied for secondary review by the Merit Protection Commissioner of an assignment of duties decision by their agency and some related matters. The applicant was transferred to another office in the same capital city and raised a number of issues relating to the context in which that decision was made, including that the decision maker was biased against the applicant and that the applicant was assigned to different duties despite the fact that several investigations into allegations against the applicant of harassment of subordinate staff had cleared them of any wrongdoing.

Review

Regulation 5.23(2)(a) provides that an action is not reviewable if it is mentioned in Schedule 1 to the Regulations. Item 10 of Schedule 1 provides that an assignment of duties decision is not reviewable unless it involves:

As the decision under section 25 of the Public Service Act to assign different duties to the applicant did not involve any of the exceptions in Item 10, the Merit Protection Commissioner concluded that the relevant decision was not reviewable under the Regulations. Nevertheless, for avoidance of doubt, the Merit Protection Commissioner reviewed the issues raised by the applicant relating to the context in which the decision in question was made.

In June 2005, the applicant submitted a formal complaint of unacceptable behaviour by one of their subordinates. The subordinate laid a counter complaint against the applicant. In accordance with the relevant internal instructions, the applicant’s manager arranged for a quick assessment to help determine the nature and gravity of the matter. The result of the quick assessment was a recommendation that there should be a more detailed review of all issues surrounding the complaints.

The investigator subsequently engaged by the agency reported in October 2005 that:

The investigator recommended, among other things, that one or more of the current staff should be transferred to another office in the city as soon as possible and that:

Upon receiving the report, the relevant manager provided the applicant with an abridged version of it and the opportunity to comment before a decision in relation to the recommendations in the report was made. The applicant provided a detailed response. In November 2005, the manager advised the applicant that, after considering the report and the applicant’s response, and having consulted the HR area, it was decided that the applicant would be transferred to another office of the agency.

Section 25 of the Public Service Act allows an agency head to assign new duties to an APS employee and, as noted above, a right of review of such decisions applies only in certain prescribed circumstances. Further, even if it were moot whether procedural fairness must be afforded in relation to assignment of duties decisions generally, it is nevertheless the case that actions taken under the Public Service Act must be consistent with the overall scheme of the Act, including the APS Values.

In this context the Commission’s booklet Ongoing Employment: recruitment and related issuesrelevantly provides (at paragraph 3.19 on page 48) that:

“If a proposed change of duties or relocation has not been sought by the employee, to ensure compliance with the APS Values it is advisable that the employee be consulted before a final decision is made…”

“The extent of consultation and the degree to which an agency takes into account the needs of the employee must be balanced against the operational efficiency of the agency. In the end, while the agency head is required to act fairly and have regard to individual needs, the agency head has the prerogative to make the final decision regarding any assignment of duties, with limited review rights for the employee.”

In this case, it was clear that the decision maker had considered the applicant’s views and had also sought independent advice about how to proceed. In particular, at the conclusion of the investigation, the manager gave the applicant adequate opportunity to put forward their views before acting on any of the report’s recommendations. In assigning the applicant to different duties, the manager adopted the recommendation that the investigator thought would be the least disruptive, since moving the applicant was the only single move that would address the relationship issues between all three parties.

Outcome

In the circumstances, the Merit Protection Commissioner was reasonably satisfied that the decision to assign the applicant to new duties was consistent with the requirement to act fairly and to balance the needs of individuals with those of the operational efficiency of the agency.

Next page: Appendixes