Australian public service commissioner stephen sedgwick

breaches of the Code of Conduct

APS employees who are found to have breached the Code of Conduct can apply directly to the Merit Protection Commissioner for a review of the determination that there had been a breach, and any sanction imposed for a breach of the Code.

There were 46 applications for review of a decision that an employee had breached the Code of Conduct and/or the sanction imposed for a breach, and 29 cases on hand at the start of the year. Thirty-four cases were reviewed during the year.

Employees who are found to have engaged in misconduct may have determinations made about their behaviour that relate to more than one element of the Code of Conduct—for example, sending an offensive email may be both a misuse of Commonwealth resources and a failure to treat colleagues with courtesy and respect.

Allegations of bullying behaviour in the workplace were a significant factor in the Merit Protection Commissioner’s Code of Conduct review caseload in 2012–13. There were 14 cases where this was a significant reason for the agency investigating the employee for suspected misconduct. Of these, there were three cases where employees were investigated for behaviour towards their supervisors, four cases where supervisors were investigated for bullying behaviour towards subordinates, six cases of behaviour towards colleagues and one case of an APS employee’s behaviour towards clients in a regulatory role.

One case of sexual harassment of a colleague was reviewed. One case of a suspension from duty during a Code of Conduct investigation for sexual harassment of a client was also reviewed.

The management of attendance also featured in a number of cases (five out of 34) in the review caseload, including false recording of attendance and dishonesty in claiming sick leave.

Two cases of public comment on agency administration and government policy were reviewed— one involving an employee who spoke to the media and one involving inappropriate and unprofessional comments to an administrative review body.

Five cases of unauthorised access to client records in agency databases were reviewed, including access to the records of the review applicant’s family members.

1 Under subregulation 5.24(2) an APS employee may seek review of an agency determination of a breach of a Code of Conduct, a sanction imposed as a result of a determination of a breach of the Code or a review of both the determina- tion of a breach and the sanction imposed.

box m6: Code of Conduct case—sexual harassment and lack of procedural fairness

An employee who applied to the Merit Protection Commissioner for review was found by their agency to have sexually harassed a colleague by making sexually explicit comments and behaving in an inappropriate way towards the colleague both at work and at work social functions.

When investigating the case, the agency gathered evidence from witnesses to some of the incidents. This evidence was inconclusive as the witnesses claimed to be unable to recall the details of particular incidents. In this case it was necessary to test the reliability of the evidence of the witnesses because the team in which this behaviour was alleged to have occurred met socially extensively and members of the team had developed close friendships.

The witness evidence also included statements from two senior managers who had not witnessed the alleged misconduct. One of the managers made adverse statements about the employee’s character based on general observations, including a statement that the employee was untrustworthy and lecherous. The manager also made statements about the circumstances that led to the complaint which were relevant to the credibility of the complainant.

The agency investigator did not put any witness statements to the employee and relied instead on inconclusive CCTV footage of two incidents.

Although the manager did not witness the behaviour, the manager’s evidence was relevant, credible and significant in the deliberations of the decision-maker, as it related to the character of both the employee and the complainant. The adverse evidence of the manager, or a reasonable summary of that evidence, was not put to the employee and therefore the Merit Protection Commissioner recommended that the decision be set aside on the basis that the employee was denied procedural fairness.

It can be difficult to investigate and reach conclusions about allegations of sexual harassment because the facts are often highly contested and the evidence of witnesses may be affected by gossip and personal loyalty to one party or another. However, sexual harassment is a serious matter and a finding of misconduct on this basis is significant. For this reason, in many cases it would be prudent for agencies to seek professional advice when investigating and making findings of fact in sexual harassment cases, including from legal advisers, to ensure that the process is procedurally fair, the evidence is properly tested and weighed and the reasoning underpinning the decision is sound.

review of promotion decisions

The Merit Protection Commissioner establishes promotion review committees (PRCs) to conduct merits review of promotion decisions for jobs in APS classification groups 1 to 6. A PRC comprises a convenor, a nominee from the relevant agency and a third member nominated by the Merit Protection Commissioner.

The only ground for a review of a promotion decision is merit. The PRC has the power to confirm the promotion decision made by the agency or substitute a different decision.

Details of the promotion review caseload are in Table M4. In this table, ‘case’ means an application by one or more APS employees for review of a promotion decision or decisions arising from a discrete agency selection exercise.

Table M4: Promotion review caseload—2011–12 compared to 2012–13
Promotion review cases	2011–12	2012–13
On hand at start of year	2	6
Received during the period	82	44
Total caseload	84	50
Reviewed	60	30
Not accepted	1	3
Lapsed or withdrawn	17	16
Total finalised during period	78	49
On hand at end of year	6	1
Target completion time (weeks)	8 or 12	8 or 12
Completed within target time (number)	57	30
Completed within target time (percentage)	95	100

Note: A target of 12 weeks for reviews with more than 10 applicants was introduced in 2010–11

Figure M3 shows how the PRC casework has fluctuated over the last six years.

Figure M3: Trends in promotion review caseload, 2007–08 to 2012–13

The number of applications for promotion reviews (44) decreased by 46% in 2012–13 compared to 2011–12. The number of PRCs convened to consider applications (30) fell by half in 2012–13.

Target times for promotion reviews are 12 weeks for cases with more than 10 parties and eight weeks for all others. In 2012–13 all review cases were completed within the target times. The case on hand at 30 June 2013 was within its target time of eight weeks.

Table M5 lists those agencies whose promotions attracted review applications, as well as a breakdown of the number of ‘active’ and ‘protective’ applications.

Table M5: Review of promotion decisions, by agency, 2012–13
Agency	Promotion reviews finalised	Total applications received	‘Active’ applications received	‘Protective’ applications received	Promotion decisions considered	Promotion decisions varied
Australian Taxation Office	16	31	20	11	23	1
Department of Human Services	6	58	8	50	55	0
Australian Customs and Border Protection Service	3	8	3	5	6	0
Five other agencies (with one review)	5	61	11	50	90	0
Total	30	158	42	116	174	1

Note: An APS employee may make an application for review of one or more promotion decisions. Not all applications are considered by a promotion review committee. Some applications are withdrawn, are held to be invalid or, in the case of ‘protective’ applications, do not proceed to review

Unsuccessful candidates for a promotion may lodge an ‘active’ application seeking review of a promotion decision. Employees who have been promoted and whose promotion may be subject to review may lodge a ‘protective’ application against the promotion of other successful candidates. This application will be considered by a PRC only if the employee’s promotion is overturned on review.

During the year, applications for reviews were received in relation to promotion decisions made in eight agencies. The three agencies with two or more applications for review are identified in Table M5. Five other agencies with one application for review are not separately identified.

PRCs varied only one (0.6%) of the 174 promotions reviewed. This is the smallest number of variations in recent years—the proportion of decisions varied has tended to fluctuate between 2% and 5% over the years. The small proportion of varied decisions in 2012–13 tends to indicate that agency recruitment decision-making at these classifications is generally effective. However, the existence of a promotion review mechanism, whether promotion decisions are overturned or not, also guards against non-merit-based decisions. Decision-makers are likely to be more careful with their assessments if they know that their decisions might be reviewed by an external, independent body.

In 2012–13, the size of cases (measured by the applicant field and the number of promotions involved) halved.

The largest number of promotion review applications considered by a single PRC was 39 in the Department of Immigration and Citizenship. Three other PRCs involved 10 or more parties. This compares with six PRCs considering 10 or more parties in 2011–12. The remaining reviews (87%) had four or fewer applications. The average number of applications for each finalised promotion review process was 5.3 and the average number of promotions considered by each PRC was 5.8.