Badly behaved public servants have been hauled over the coals in the latest report by the Merit Protection Commissioner (MPC).
The 2014-2015 annual report, released last week by Commissioner Annwyn Godwin, found evidence of lying, swearing, bullying, aggression and poor performance in the Australian Public Service (APS), as well as some cases where employees were unfairly chastised.
The Merit Protection Commissioner makes external, independent rulings on APS employment decisions and actions, including promotions, demotions and transfers, as well as rulings on ethical standards.
While case summaries and decisions are published they are always anonymous: no person or agency is ever named.
Crimes and misdemeanours
In one of the most extreme examples, an office manager was demoted after he was rude and threatening to his staff and made derogatory comments about the way they looked. He also made racist comments at an indigenous college he visited and lied to a more senior manager about the relationship he was having with one of his team leaders.
The manager was demoted from Executive Leader 2 (EL2) to APS6 for breaching the APS Code of Conduct but the Commissioner stopped short of sacking him, arguing there were “mitigating circumstances, including stressors in the manager’s personal life”.
However, the MPC said that the office manager could no longer be trusted to hold an executive level leadership position and he deserved to be stripped of his rank.
“The agency had evidence that staff in the office were unhappy and received allegations that the office manager was in a relationship with one of the team leaders and was bullying and harassing staff,” said the Commissioner’s report.
“The Merit Protection Commissioner found that the manager’s proven behaviours were very serious and that by not being truthful about his relationship with the team leader, the manager had breached the trust of his employer.”
The case summary concluded that there was evidence the manager’s inappropriate conduct towards other employees was an ongoing pattern of behaviour.
In other case, a public servant was fined 4 per cent of his salary by the agency he worked in – although this was later halved by the Commissioner on a technicality – for swearing at his boss and bitching about him to other staff in the office.
The report also highlighted a number of cases where APS staff were rude and aggressive towards client service staff in their own agencies – either on the phone or in person – when they were not at work.
The case summary said such behaviour by APS staff “in their private capacity as clients of the agency” was unacceptable.
“It can also undermine public confidence in the agency if, for example, employees are perceived to have obtained an advantage in accessing services and benefits over other members of the community because of their employment with the agency,” the Commissioner said.
“For these reasons, agencies have established policies on employees as clients and have a legitimate interest in the behaviour of employees in their private capacity as clients of the agency.
“The Merit Protection Commissioner has argued that aggressive behaviour by an APS employee as a client towards client service staff is behaviour in connection with employment for the purposes of the Code of Conduct.”
Financial sanctions, including salary reductions, were possible for such breaches of the code, said the MPC.
“In one case, the Merit Protection Commissioner noted that a more severe sanction may have been appropriate but for mitigating circumstances.”
Another important function of the MPC is to hear appeals from employees who feel they have been hard done by, which is often after they have been demoted.
The Commissioner knocked back an appeal from an EL2 manager after he was demoted for poor performance following a reports from his manager and an independent assessor.
The demoted manager argued that there were too many delays assessing his performance and there was not enough evidence his performance was substandard.
However, the Commissioner found that: “The concerns about the employee’s performance were behavioural. The employee had good technical skills but was unable to lead projects, align his work to the strategic directions of the agency and engage collaboratively with stakeholders and colleagues to obtain their buy-in.
“The Merit Protection Commissioner considered that there was considerable common ground between the manager and the independent assessor about the employee’s capacity to engage strategically and work collaboratively with stakeholders.”
But the employee’s appeal fell on deaf ears and the Commissioner backed up his demotion for poor performance.
In other cases, the MPC found that some APS employees should not have been reprimanded or dealt with quite so harshly.
One woman had been castigated for naming two agency clients she said had been aggressive towards her in a Comcare application for workers compensation.
Although she was found to have breached the Code of Conduct by naming agency clients, the Commissioner found that the woman’s state of health may have affected her judgement and that no real harm was likely to result to the agency, or to the clients, because of her disclosure. She had also shown remorse.
In another case, an Executive Level 2 manager was accused of bullying and harassing staff. The agency hired a consultant to investigate two years of allegations against her, which resulted in a 61-page report, including 21 attachments, many of these detailing interviews with witnesses. The manager was then given eight days to respond.
The Commission concluded that the investigation was procedurally unfair because it said the list of allegations against her was incoherent and lacked detail of the dates, times and places of the alleged incidents, making it hard for the manager to respond. It also ruled that the consultant’s decision was one-sided and made no reference to the manager’s defence.
“As a consequence, when responding to the allegations, the employee had to try and piece together what it was that she was alleged to have done,” the case summary said.
In the end, the Commissioner ruled that the problem was one of management style, rather than misconduct, and could be dealt with less formally.
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