Breach of APS Code of Conduct - "Altercation", self-defence and reasonable force

Application

An APS employee applied for review of a decision that they had breached the APS Code of Conduct as a result of a "physical altercation" with a fellow employee at work. Sanctions imposed for these breaches were a re-assignment of duties and a fine set at 1% of annual salary or about $800.

The applicant acknowledged that they were one of the parties in the incident but claimed that they did not start the "altercation", were essentially defending themselves and, when they had the opportunity to disengage, did so.

Review

According to the applicant, after the other person bumped into them in a corridor and then came back aggressively towards them, the applicant reacted to defend themselves and the "altercation" ensued.

There was no witness to the commencement of the incident. However, several people said that, ignoring requests to stop, the applicant and the other person continued to struggle and throw punches until physically separated.

Having considered the matter, the Merit Protection Commissioner was reasonably satisfied that even if the applicant thought they were acting in self-defence, by throwing the first punch and hitting the other employee on the temple with a closed fist, the force used by the applicant was disproportionate to the danger they said they thought they faced. The Merit Protection Commissioner also noted that the applicant had a material advantage in strength and physical bulk against the other person involved.

Outcome

Consequently, the Merit Protection Commissioner agreed with the applicant’s agency that the applicant had breached the APS Code of Conduct, in particular subsections 13(3) and (11) of the PS Act 1999. The breach of subsection 13(3), failure to treat the other person with respect and courtesy, was self-evident. Subsection 13(11) was breached because information about the workplace incident had subsequently to be given to the State police and a medical centre, thereby adversely affecting the reputation of the APS. The Merit Protection Commissioner recommended that the decisions under review be confirmed.

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