Australian public service commissioner stephen sedgwick

box m4: review case—complaint about racial harassment

An APS employee sought review of the agency’s response to allegations that a colleague had bullied and harassed the employee, including racial harassment. The employee was concerned about the colleague’s use of language including referring to African Americans as ‘the blacks’ and using the term ‘Sambo’ during social conversations at work.

The Merit Protection Commissioner observed that the employee was offended by the use of this language but found that none of this language was directed at the employee or intended to hurt or insult the employee.

The employee argued that even though there was no intent to hurt or insult, the use of this language was nevertheless inappropriate in the workplace and constituted racial harassment. The Merit Protection Commissioner took the view that use of the term ‘the blacks’ as a descriptor of African Americans or other racial groups was not necessarily offensive. However, the use of the term ‘Sambo’ was more problematic because of its association with a racial caricature.

Following the guidance in the Commissioner’s publication Respect: Promoting a culture free from harassment and bullying in the APS, the Merit Protection Commissioner noted that whether language is offensive is not an entirely subjective matter. The context in which language is used is relevant to establishing whether a reasonable person would find it offensive. In this case, the colleague’s use of the term ‘Sambo’ was done in a neutral, factual manner, in reporting something that had occurred when the colleague was a child. In this circumstance, the Merit Protection Commissioner found that the colleague had not engaged in racial harassment of the employee.

The Merit Protection Commissioner continues to be concerned at the number of primary and secondary review cases where the recommendation of her delegate is that part, or all, of a decision be set aside because agency decision-makers have failed to allow the employee an opportunity to be heard or to adhere to agency procedures. Having a good understanding of the principles of administrative decision-making when taking employment decisions, including those that have a substantial impact on an employee, such as determinations of breaches of the Code of Conduct or a decision to reduce an employee’s classification because of unsatisfactory performance, is crucial. Some case examples have been highlighted in this report and the Merit Protection Commissioner intends to draw upon such cases in discussions with agencies to promote better decision-making.

promotion review performance

In 2012–13 all promotion reviews were completed within the target timeframe of either 8 or 12 weeks (compared to 95% in 2011–12 and 86% in 2010–11). One case was on hand at 30 June 2013 and was subsequently completed within eight weeks. This is the first time in recent years that this result has been achieved and reflects the professionalism of the staff of the Merit Protection Commissioner and the cooperation of agencies and review applicants. Although the result occurred in a year when fewer promotion reviews were conducted, this does not detract from the achievement.


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The number of promotion review cases received (44) and the number of cases reviewed (30) fell by 46% and 50% respectively, when compared with 2011–12. While the number of reviews fell, the average size of a promotion review (5.3 parties) was similar to the previous year (5.4 parties).

In 2012–13, the number of promotion decisions varied fell to one from seven in 2011–12. This represents 0.6% of the 174 promotion decisions considered and is well outside the range of 2–5% of varied decisions over the last seven years.

whistleblower inquiries

In 2012–13, the Merit Protection Commissioner received six whistleblower reports compared to nine in 2011–12. The Merit Protection Commissioner finalised four cases during the year, including the two cases carried over from the previous year. One inquiry was conducted which largely concerned a dispute about the handling of an employee’s health issues and found that there was no evidence to support the employee’s allegations of improper treatment. There were four cases on hand at 30 June 2013 that were lodged between April and June 2013. The target of 70% of reports responded to within six weeks and with any further investigations conducted promptly was largely met. All reports were acknowledged within six weeks.

independent selection advisory Committees and Fee-For-service activity

Agency demand for fee-for-service functions decreased again in 2012–13. This is likely to reflect the downward pressure on agency budgets and the overall downturn in APS recruitment.

The number of requests for Independent Selection Advisory Committee (ISACs) fell by 62% to 14 in 2012–13, with six agencies using ISACs (the same number as last year). While most ISACs were convened in two agencies—the Department of Agriculture, Fisheries and Forestry and the Department of Defence—the largest recruitment exercises were in the Australian Taxation Office, which averaged over 800 candidates per ISAC.

Other fee-for-service work—mainly independent selection panels for the Australian Federal Police—showed a small increase in 2012–13 compared to the previous year (9%).

outlook For the Coming year

The major goals for 2013–14 are to consolidate the gains in productivity, quality and timeliness in the review function, and to work with agencies to improve decision-making and the handling of reviews. The Merit Protection Commissioner will also assist the Commissioner with helping agencies to embed the revised APS Values and Employment Principles.

The Merit Protection Commissioner aims to build on the solid foundation for review work achieved in 2012–13. Any increase in the number of reviews will require careful monitoring to balance the resources available, including the workload of delegates. Opportunities for further streamlining of processes, including more effective use of written communications to applicants and agencies, enhanced use of information technology tools and developing a more user-friendly website, will maintain the momentum. In the absence of staff turnover, it is anticipated that timeliness targets will be met in 2013–14.

The Merit Protection Commissioner intends to continue to be active in engaging with stakeholders, particularly with agencies, and aims to expand the program of meetings to discuss trends and issues identified through the review work to a wider range of agencies. Feedback from reviews is important so that agencies understand the reasons for recommendations and are able to reflect lessons learned in their policies and procedures. Encouraging agencies to be proactive in improving their decision-making will have significant benefits. It is more effective for the workplace and the employee for complaints to be handled quickly and fairly at the local level.

The Merit Protection Commissioner is also putting measures in place aimed at better managing the expectations of APS employees so they understand what a review involves and the potential outcomes. The first steps will be through the interactions the staff of the Merit Protection Commissioner have with review applicants, and a redesign of the website to provide easier access to relevant information.

The demand for promotion review services and fee-for-service activities is largely dependent on agency recruitment activity. While the promotion review function has been streamlined within the office of the Merit Protection Commissioner as far as practicable, the Merit Protection Commissioner aims to explore the scope for working with agencies for further improvements, for example, through more timely provision of selection documents, and better advice to employees by agency human resource staff about review rights.

The potential of ISACs to enhance the overall integrity of APS recruitment practices is large. The recent amendments to the Regulations provide ISACs with the flexibility to use a greater range of selection methodologies, consistent with contemporary recruitment practices. These changes provide an opportunity to re-invigorate the role of ISACs.

A focus next year will be on communicating the benefits of the new ISAC arrangements to agencies. With this in mind the Merit Protection Commissioner aims to finalise memoranda of understanding with interested agencies early in 2013–14.

Recent amendments to the PS Act which expand the Merit Protection Commissioner’s functions will require some follow-up work. For example, the policy approach to responding to agency requests to undertake investigations into suspected employee misconduct (where the employee agrees), as well as guidance to review staff reviewing applications from former employees who have been determined to have breached the Code of Conduct will require development.

The review function does not operate in isolation. An understanding of, and involvement in, developments affecting the management of the APS and the wider Commonwealth public sector is critical for the performance of the Merit Protection Commissioner’s functions. For example, the commencement of the PID Act will impact on the whistleblower function, and the commencement of the Public Governance, Performance and Accountability Act 2013 will impact on reviews of determinations of breaches of the Code of Conduct if the determination involves a breach of the general duties of officials as set out in that Act.

For the role to function optimally, the Merit Protection Commissioner must keep abreast of these developments and, similarly, ensure that lessons learned from review cases or recruitment outcomes are communicated to agencies to enhance the overall performance of the APS. Eventually all changes in APS employment-related policy will be reflected in agency decisions and, for those agency decisions that are within the Merit Protection Commissioner’s jurisdiction, may be subject to review. The aim is not to repeat the mistakes of the past.

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box m5: Code of Conduct case—reduction in classification for bullying and harassment

An Executive Level 2 employee who applied to the Merit Protection Commissioner had been reduced in classification to an Executive Level 1 for behaving at times in a rude, aggressive and dismissive way to subordinate staff.

The Merit Protection Commissioner had a number of concerns about the decision-making in this case. In particular, the person who investigated the allegations appeared to lack skills in conducting an administrative inquiry. That person interviewed witnesses in an unstructured way and appeared unable to organise the concerns and claims of witnesses into a set of allegations that was capable of being factually proven.

The allegations and findings with respect to the employee’s behaviour were an unstructured mixture of:

• facts (that on a particular date the employee did or said a particular thing to another person)

• assertions (that the employee monopolised discussions in meetings)

• opinion (that the employee was controlling ).

In addition, the allegations and proven behaviours included matters relating to the employee’s management style, such as the management of deadlines, approach to editing work and skills in delegation. In the view of the Merit Protection Commissioner many of these alleged behaviours were not capable of being proven to be misconduct and should have been addressed through performance management processes.

Nevertheless, the Merit Protection Commissioner found that there was sufficient evidence to conclude that the employee had breached the Code of Conduct in relation to a small number of incidents of inappropriate behaviour. However, because the investigator appeared to adopt the opinions of the complainants and made findings that could not be sustained, the investigation and breach findings exaggerated the seriousness of the employee’s behaviour.

For this reason, and because the employee had not previously been found to have breached the Code of Conduct, the Merit Protection Commissioner recommended that the sanction decision to reduce the employee’s classification level be varied to a lesser sanction. The agency accepted that recommendation.

The Merit Protection Commissioner has observed that investigators and breach decision- makers sometimes struggle to express allegations about an employee’s behaviour in a logical and clear way and that this can result in both procedural errors and unfair outcomes.