Recommended change to sanction

Application

The agency determined that an employee had unlawfully accessed agency records (their own records and those records of people known to them) in breach of the agency’s privacy and confidentiality policy.

The applicant sought a review under regulation 5.24(2)(b) of a decision to impose a sanction of reduction in salary (approximately $5,000 per year) following a finding of a breach of the Code of Conduct (sections 13(1), (4), (7) and (11) of the Act).

Review

Having reviewed the matter, the Merit Protection Commissioner concluded that the sanction of a salary reduction of 4 pay points was too severe. The Agency concerned provided no substantive reasons in writing for their choice of the most appropriate pay point for the imposition of the sanction. Under the Agency’s Certified Agreement, this required substantial studies (or a discretionary agency decision to waive these requirements) supported by on-the-ground and other assessments, before the applicant could be advanced beyond the pay point chosen.

In the Merit Protection Commissioner’s view, this implication arising from the pay point chosen had not been adequately addressed, and given other mitigating circumstances it was recommended that the original sanction be set aside and replaced with a lesser sanction of a reduction by 2 pay points. It was, however, suggested the applicant be provided with specific further instructions on the APS Values, Code of Conduct and agency specific behaviours, with an emphasis on those elements that relate to privacy and confidentiality.

Outcome

The agency accepted the Merit Protection Commissioner’s recommendation that the decision under review be varied to the effect that the lesser sanction be imposed.

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