Breach of APS Code of Conduct - Procedural fairness and evidentiary issues

Application

An APS employee applied for review of a decision made by their agency that they had breached the APS Code of Conduct by making offensive comments to their supervisor and by not following, in a prompt and professional manner, directions given to them by the supervisor. Sanctions imposed for these breaches were a reprimand and a reduction in salary.

At the same time these matters were being investigated by the agency, the person who made the above decision was dealing also with another, unrelated allegation made against the same employee.

Review

Having reviewed the matter, the Merit Protection Commissioner concluded that:

• Subject to one exception, the agency had generally complied with its procedures for dealing with suspected breaches of the APS Code of Conduct. The exception related to the requirement set out in Public Service Commissioner’s Direction 5.4 that the person who determines whether an APS employee has breached the APS Code of Conduct should be, and appear to be, independent and unbiased. The fact that at the time of the investigation the decision maker was also dealing with another, earlier allegation against the applicant might have caused a reasonable person to conclude that the decision maker was not, or at least did not appear to be, independent and unbiased in this matter.
• There was sufficient evidence that the applicant had failed to follow their supervisor’s direction in a prompt manner and had therefore breached subsection 13(5) of the PS Act.
• On the other hand, there was insufficient evidence that the applicant made offensive comments to their supervisor and therefore breached 13(3) of the Act by failing to treat the supervisor with respect and courtesy.

That decision relied on a statement by an anonymous witness that the applicant made a particular offensive comment to the supervisor. However, the supervisor did not hear the alleged comment. In the circumstances, even if the comment had been made, the supervisor could not have been offended by it. It is also questionable how much weight can be given to a statement which was both anonymous and not brought to the applicant’s attention before it was accepted by the agency.

Outcome

The agency accepted the Merit Protection Commissioner’s recommendation that the decision under review be varied to the effect that the applicant breached subsection 13(5) of the Act only and that they be only reprimanded for that breach.

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