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Merit Protection Commissioner

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Appendixes

Review of actions case studies

The following four review case studies highlight some of the more significant issues encountered during the year by the Merit Protection Commissioner, including that:

staff selection processes in the Australian Public Service must comply with the merit principle and administrative law and must not only be fair but also be seen as fair
administrative law requires decision makers to be free from both actual bias and any reasonable apprehension of bias
this means that it is not enough for the decision maker making a promotion decision to be unbiased—it is equally important that a fair-minded onlooker should not reasonably suspect or apprehend that the decision maker might not have brought an impartial mind to the decision
if a reasonable suspicion of bias exists in a case, the decision in the case should be made by another authorised decision maker
next, in relation to determining breaches of the APS Code of Conduct, it is generally desirable to strictly adhere to agency procedures issued under subsection 15(3) of the Act
Chapter 5 of the Public Service Commissioner's Directions 1999 includes as a minimum requirement that—before a determination is made in relation to a suspected breach, the affected employee must be informed of the details of that suspected breach and given a reasonable opportunity to make a statement in relation to the suspected breach
in this context, it is not acceptable to tell the employee that a ‘draft’, ‘in principle’ or ‘preliminary’ decision has been made yet suspended pending any submission or response they might wish to make—the opportunity to be heard must precede the formation of the decision
finally, clear legal authority (usually evidenced by a written instrument of delegation or authorisation) must exist for an administrative decision that adversely affects an APS employee
an agency cannot rely upon or ratify a decision that was invalidly made by an unauthorised person (in some cases, however, the decision might be able to be re-made by an authorised decision maker).

Case study one

Staff selection—Conflict of interest and reasonable apprehension of bias—Failure to comply with agency procedures

Application

In this case an APS employee applied for review of a promotion decision to an Executive Level (EL) 1 job in their agency. The applicant was an unsuccessful candidate for the vacancy. Here it should be mentioned that in cases involving promotion to an EL 1 or 2 job, the Merit Protection Commissioner cannot conduct a merits review but can review the relevant process.

Review

Public confidence in the integrity of the APS is vital to the proper operation of the Australian government. This confidence may be jeopardised if the Australian community perceives a conflict of interest. Consequently, APS employees need to be aware that their private interests, whether personal or financial, could conflict with their official duties. Also, general administrative law principles about procedural fairness require among other things that decision-makers be and be seen to be, unbiased or disinterested in the matter to be decided.

In this context, in relation to staff selection, the Australian Public Service Commission said the following in its publication APS Values and Code of Conduct in practice:

‘Members of selection teams will often know one or more applicants. Where a selection team member has a relationship with an applicant that might give rise to a conflict of interest, it should be declared to the chair and any other selection team members (or to the delegate and other selection team members if the chair is making the declaration). It should then be decided whether the selection team member should stand aside from the process or the consideration of the particular candidate.’

However, when investigating this case, the Merit Protection Commissioner found that the chair of the selection committee was also the delegate who made the relevant promotion decision and a referee for both the applicant for review and the successful candidate and was also claimed to be a close friend of the successful candidate (that claim was not denied). Notwithstanding the additional requirement in the relevant agency’s staff selection procedures that where the delegate is a member of the selection advisory committee, the committee’s final report should be referred to the next level up for consideration and approval, this was not done and the delegate said:

‘On the issue about being ‘judge, jury and executioner’…I have been down this path before and thought the issue would not have been controversial’

Outcome

To comply properly with the merit principle, APS staff selection processes must not only be fair but must also be perceived to be fair. That said, the relevant promotion decision had already taken effect and could not in any event be revoked by the Merit Protection Commissioner. In the circumstances, the Commissioner recommended that the agency review its staff selection practices to ensure that their future staff selection exercises are consistent with the Commission’s guidelines for avoiding and managing conflict of interest and administrative law principles relating to procedural fairness.

Case study two

Breach of the APS Code of Conduct—Failure to comply with procedural fairness and agency procedures

Application

An APS employee applied for review of a decision that, by threatening other staff, they breached subsections 13(3) and (11) of the Public Service Act 1999 (the Act) and of the sanction imposed on them for the breaches in question—reduction in classification from APS 5/6 to APS 3/4.

In their application, the applicant argued that they were denied procedural fairness in that, contrary to the requirements of the relevant agency procedures, they were not given adequate opportunity—before the agency delegate decided that they had breached the Code—to present their case in reply to the allegations.

Review

Subsection 15(3) of the Act provides that agency heads must establish procedures for determining whether an APS employee in the agency has breached the Code of Conduct. Chapter 5 of the Public Service Commissioner’s Directions 1999 sets out the basic requirements that such procedures must comply with.

When reviewing a decision that an APS employee has breached the Code, the Merit Protection Commissioner is required to consider, as a threshold matter, whether the agency’s Code of Conduct procedures comply with the Public Service Commissioner’s Directions and, if so, whether in the case in question there was substantial compliance with those procedures—see generally Walworth v Merit Protection Commissioner and Anor [2007] FMCA 24 (23 February 2007).

In this case, after investigating, the Merit Protection Commissioner was satisfied that the agency failed to comply with its own Code of Conduct procedures and accord procedural fairness to the applicant because it failed to take adequate steps to contact them before deciding that they had breached the Code. Then, after contact was established, the agency claimed that the decision in question was only a ‘preliminary decision’ and that a ‘final decision’ would be made after considering any comments from the applicant. However, when those comments were received, the agency delegate wrote to the applicant’s representative along the following lines:

‘At your request, I granted [the applicant] the opportunity to provide me with further information… A submission from [the applicant] dated 16 June 2006 was supplied by you on 19 June 2006. It is not clear what you expected me to do with that submission, as I had already made a decision about [the applicant’s] case’ [emphasis added].

Outcome

In the circumstances, the Merit Protection Commissioner was unable to consider the substantive merits of the case and recommended instead that the decisions under review be set aside and that consideration be given to whether the process should be re-done, in accordance with the procedures, by a different decision maker.

Case study three

Complaint about alleged breach of the APS Code of Conduct by another person—Power to determine breach—Failure to comply with agency procedures

Application

An APS employee applied for secondary review by the Merit Protection Commissioner of a decision made in relation to their complaint about an alleged breach of the APS Code of Conduct by another person. In short, after separate investigations by two different consultants, the relevant agency decided not to take any action in the matter.

Review

As the Australian Government Solicitor said in its publication Misconduct in the Australian Public Service (Legal Briefing No 80 of 24 October 2006), the purpose of the misconduct regime in the APS is to protect the public, maintain proper standards of conduct by APS employees and protect the reputation of the APS. In relation to lawful selection of decision makers to deal with cases of alleged misconduct, the Australian Government Solicitor said:

‘A person who determines whether or not there has been a breach of the Code must be selected in accordance with relevant provisions in the procedures of the agency under section 15(3) of the PS Act. The procedures will generally determine who makes the selection and how the selection is made…

Section 15(3) procedures commonly permit any person to be selected as the decision maker in relation to breach. In this case, it is not necessary that the person be an APS employee within the agency or elsewhere. They can for example be a consultant who is not employed in the APS.’

In this case, the first consultant who investigated the alleged incident found that there was no basis on which to conclude that the person in question had breached the Code of Conduct.

However, when the complainant pointed out that the consultant had failed to take into account certain material evidence, the agency agreed to reopen the matter and selected another consultant to determine under its section 15(3) procedures whether that APS employee had breached the Code. Having reviewed the first consultant’s report and taken additional evidence, the second consultant determined that the APS employee in question had in fact breached the Code. Nevertheless, the agency subsequently decided that it preferred the first report and that it would not take any further action in the matter.

On review, the Merit Protection Commissioner established that while the second consultant was properly appointed under the agency’s section 15(3) procedures, the HR manager who decided that the second consultant’s report should not be acted upon had no formal authority under those procedures to override that consultant’s determination.

Outcome

In the circumstances, the Merit Protection Commissioner advised the agency that:

the HR manager’s decision was invalid; and
what the agency should do next was to consider what if any sanction should be imposed on the APS employee in question for their breach of the Code.

Case study four

Breach of the APS Code of Conduct—Gathering evidence—Recording meetings

Application

In this case the applicant was found to have breached subsection 13(3) of the Public Service Act 1999 (the Act) which requires APS employees, when acting in the course of APS employment, to treat everyone with respect and courtesy and without harassment:

because of certain inappropriate behaviour towards another APS employee in their agency; and
because they attempted to openly record a meeting with management, despite being told that they had no permission to do so.

Review

After investigating, the Merit Protection Commissioner was reasonably satisfied that there was sufficient evidence that, on more than one occasion, the applicant failed to treat another APS employee with respect and courtesy and without harassment, as required by subsection 13(3) of the Act.

On the other hand, in relation to the applicant’s attempt to openly record a meeting, both the Australian Public Service Commission and the Australian Industrial Relations Commission have said that in certain circumstances recording a meeting, if done openly, may not only be not inappropriate but may in fact be desirable. For example, in Curr and Australian Taxation Office (U2004/3067 of 8 November 2004), the Australian Industrial Relations Commission found that there was nothing improper arising from the applicant’s desire to openly record a meeting. Also, in its recent publication Handling Misconduct, the Australian Public Service Commission said that, before interviewing an APS employee in relation to alleged misconduct, it would be good practice to decide whether the interview is to be audio-recorded (in which case a copy of the recording should be made available to the interviewee) or whether a written record of interview is to be prepared (in which case it may be convenient to use a note-taker).

In the applicant’s case, they were asked to attend a meeting with management on the day they returned from sick leave. Given the short notice of that meeting, they were unable to arrange a support person and felt ambushed and threatened. As the agency did not offer to record or minute the meeting as they requested, they announced that they would themselves record it and, despite oral and written instructions that they had no permission to do so, openly attempted it.

Given the relative complexity of issues in the case, it would have been reasonable to expect that the applicant would wish to be supported in their discussions with management, or to have the meeting minuted or recorded. This suggested that the instruction to the applicant that the meeting was not to be recorded, while lawful, was not reasonable and that it would have been preferable to arrange for the meeting to be recorded or minuted by the agency.

Outcome

Consequently, the Merit Protection Commissioner recommended that the decision that the applicant breached the Code of Conduct be amended to clarify that this did not include their attempt to record the meeting with management to discuss their case.