Australian public service commissioner stephen sedgwick

box m1: Code of Conduct case—a harsh sanction decision

A supervisor was found to have breached four elements of the Code of Conduct, including section 13(3) of the PS Act—‘An APS employee … must treat everyone with respect and courtesy, and without harassment’. The supervisor was found to have breached the Code for the way they conducted discussions with subordinate staff about work-related matters, including standard of dress and attendance. The supervisor was found also to have raised their voice and handled discussions in a clumsy and unprofessional manner.

The agency imposed a sanction of a reduction in classification from Executive Level 1 to APS 6. In making the decision, the decision-maker considered a number of aggravating factors, including that the supervisor had failed to show remorse by apologising to the staff members concerned and that one staff member had successfully sought workers’ compensation for psychological injury on the basis of their interactions with their manager.

The Merit Protection Commissioner found that the sanction imposed was too harsh and recommended that it be varied to a reduction in salary. The agency accepted the recommendation.

In the view of the Merit Protection Commissioner, the proven behaviours were relatively minor acts of discourtesy that were not sufficiently serious to warrant a reduction in classification. The Merit Protection Commissioner also considered that there were significant mitigating factors, including that the supervisor was a newly promoted and inexperienced manager when the behaviours occurred, was managing a challenging team in which there were staff with performance, attendance and behavioural problems, and had received little practical support and guidance from more senior managers.

The Merit Protection Commissioner was also of the view that the successful compensation claim was not an aggravating factor. The Commonwealth compensation scheme is a ‘no fault’ scheme and Comcare accepts claims where it is satisfied that the employment situation contributed to an employee’s perception that they were bullied and harassed. While a complainant’s perception is a relevant consideration, in the view of the Merit Protection Commissioner, agency decision-makers in Code of Conduct matters need to make an independent judgement of the seriousness of the behaviour of the employee under investigation. The fact that a workers’ compensation claim had been accepted in this case did not demonstrate that the behaviours found to have been in breach were, in fact, serious.


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Another area of focus in 2012–13 was ensuring the efficiency and effectiveness of the promotion review process.

The office of the Merit Protection Commissioner maintains a register of appropriately qualified and trained APS employees who can be nominated as an independent third party on a promotion review committee (PRC). In 2012–13 the register was refreshed and agencies were encouraged to nominate employees with experience in staff selection to participate in promotion reviews. More than 200 expressions of interest were received and the review team conducted nine training sessions around Australia. There are now over 150 employees available for this role in agencies.

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Ms Godwin spoke at two of the Canberra-based sessions and reinforced the importance of the role in ensuring the integrity of staff selection and employee confidence in the review system.

While the fee-for-service activity has reduced this year, reflecting a general downturn in recruitment across the APS, the Merit Protection Commissioner has continued to place a high priority on the quality of those services. The fee-for-service activities predominantly comprise establishing Independent Selection Advisory Committees (ISACs) to manage recruitment processes at the APS 1–6 level. ISACs are a cost-effective and efficient method of ensuring public and employee confidence in the merit-based selection of staff.

The Merit Protection Commissioner finalised an internal examination of the ISAC function in 2012–13 and used the conclusions to improve ISAC processes and procedures. Staff working for the Merit Protection Commissioner have also developed draft revised templates for agreements with agencies on establishing an ISAC with a view to have a clearer understanding of roles and responsibilities.

legislative reform agenda

During the year, staff of the Merit Protection Commissioner worked with other staff from the Commission’s Ethics Group to develop advice for the Minister for the Public Service and Integrity on changes to the review of actions scheme, the arrangements for establishing ISACs and the Merit Protection Commissioner’s functions.

In February 2013, the Public Service Amendment Act 2013 was passed by parliament and the amended PS Act came into effect on 1 July 2013. The amendments to the PS Act were complemented by amendments to the Public Service Regulations 1999 (the Regulations) and the new Australian Public Service Commissioner’s Directions 2013.

The PS Act, as amended, provides for two new functions for the Merit Protection Commissioner:

• Section 15 of the PS Act was amended to enable an agency head to investigate allegations of breaches of the Code of Conduct by former employees. An amendment to Part 7 of the Regulations enables the Merit Protection Commissioner to review a determination that a former APS employee has breached the Code of Conduct.

• Section 50A of the PS Act was also amended to enable the Merit Protection Commissioner to inquire into, and determine whether a non-SES employee or former employee has breached the Code of Conduct, if requested to do so by an agency head and with the consent of the employee. The Merit Protection Commissioner may decline the request.

Other amendments to the PS Act enable the Commissioner to investigate alleged breaches of the Code of Conduct by APS employees in certain circumstances. Section 33 of the PS Act was amended to make clear that ‘an APS action’ for the purposes of the review of action scheme includes an action by the Commissioner in respect of this new function.

As part of the legislative change, the government updated and improved the regulations relating to the operation of reviews, promotion reviews and ISACs, such as enabling the Merit Protection Commissioner to conduct reviews as he or she sees fit—a provision already available to agency heads. This provision will enable the office of the Merit Protection Commissioner to manage less complex review cases as appropriate and allow more attention to be given to complex and serious review cases.

With the passage of the legislation, work was undertaken on updating policies and guidelines, supporting documents and the website to be ready for the introduction of the reforms on 1 July 2013. Between mid-April and early May 2013, the Commission released a series of ‘advices’ to inform agency corporate areas about the changes to the PS Act and subordinate legislation, and the action agencies needed to take to be ready for commencement. Four of the 16 advices concerned changes to the Merit Protection Commissioner’s functions.

The Merit Protection Commissioner’s staff participated in the Commission’s information sessions to agency corporate staff to explain the changes. These sessions were well-attended and well- received.