Australian public service commissioner stephen sedgwick

box m3: review case—dispute about underperformance

An employee sought review by the Merit Protection Commissioner of an agency decision not to place them on a performance improvement plan and defer performance progression for the next performance cycle. The employee was in a role that processed payments to clients.

The employee considered that because the agency had failed to follow its performance management processes, as detailed in its procedural guidance, a valid performance agreement was not in place. The employee also disputed the factual evidence managers relied on to establish unsatisfactory performance.

The Merit Protection Commissioner considered that the employee’s argument about whether a valid performance agreement was in place lacked substance and was a narrow reading of the agency’s policy and procedural guidance material.

The Merit Protection Commissioner considered that the performance measures for this employee were appropriate—focusing on output, quality and behaviours that support the effective performance of the function.

The Merit Protection Commissioner noted that the employee was not subject to quantifiable targets with respect to error rates and assumed that there was no expectation that the employee would have a zero error rate. However, the Merit Protection Commissioner was satisfied by the documentary evidence the manager provided of the employee’s errors, the impact of these errors on clients and the evidence of failure to follow correct procedures designed to provide accountability for the expenditure of public monies. The Merit Protection Commissioner concluded that although the number of errors was relatively small they were serious and affected the effective administration of the business area.

The Merit Protection Commissioner noted that the employee had no output targets but accepted that the manager’s concerns about the employee’s output were genuine and fair and had no reason to doubt the manager’s judgement on this point.

The Merit Protection Commissioner concluded that the evidence suggested that there was a sufficient basis to place the employee on a performance improvement plan.

parliament and government

Ms Godwin engaged in regular meetings with the Minister for the Public Service and Integrity and his staff to discuss issues of relevance to her functions.

In November 2012, the House Standing Committee on Education and Employment tabled its report on the inquiry into workplace bullying entitled Workplace bullying : We just want it to stop. The Merit Protection Commissioner contributed advice to the government on its response.

Among other things, the government accepted the report’s recommendation that the Merit Protection Commissioner’s database be enhanced so that it can capture the number of review cases in which employees are required to attend medical examinations at the direction of their employer (fitness for duty) and the outcome of such review applications. The Merit Protection Commissioner undertook to capture this information manually from 1 January 2013 and to have the system amendments operational by 1 July 2013. The work was completed on time.


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The parliament passed the government’s Public Interest Disclosure Act 2013 (PID Act) on 26 June 2013. The PID Act scheme will result in changes to the whistleblower framework in the APS. The Merit Protection Commissioner was involved in consultations on the development of the PID Act and will work with the Commonwealth Ombudsman, the Inspector-General of Intelligence and Security and the Commissioner to implement the required changes.

overseas involvement

During 2012–13, the Merit Protection Commissioner continued to assist the Commissioner in supporting international reform, including representing the Commissioner in the Pacific Public Service Commissioners’ Conferences.

In August 2012 Ms Godwin attended a working group meeting in Tonga (the ‘Terms of Reference’ working group), where the future direction and focus of the conference were scoped and developed. A wide range of papers as part of the conference’s 10–year review were discussed.

These papers and recommendations were then presented to the Pacific Public Service Commissioners’ Conference in the Republic of the Marshall Islands in October 2012. The theme for the conference was ‘Good Governance—the road map for the next 10 years’. In addition to representing the Commissioner, Ms Godwin also presented a keynote address and assisted by chairing a workshop.

The Merit Protection Commissioner continued her support for this Commissioners’ forum between conferences through active participation in two working groups—the Terms of Reference group which has a particular emphasis on future focus and governance arrangements, and a second group, which had been established as an outcome of the conference to develop a ‘State of the Service’ report. The initial focus of this latter group was to consider the data needs and the timing and format of the report. Ms Godwin was also involved in advising the secretariat on strategic matters as required.

The Merit Protection Commissioner continued to meet international delegations to discuss her functions and the review of action scheme and, on behalf of the Commissioner, the APS Values and APS-wide legislation. This year Ms Godwin discussed these matters with representatives from Laos and Myanmar. The Merit Protection Commissioner also contributed to the work of the Commission with the OECD, briefing the Commissioner and Deputy Commissioner on matters of relevance to the review framework.

Ms Godwin kept in regular contact with senior officials in other public services, in particular, colleagues from New Zealand, the Netherlands and Canada. Being able to discuss matters of mutual interest and share observations on trends, work programs and experiences is valuable both for the office of the Merit Protection Commissioner and the APS and for international colleagues.