A recent Fair Work Commission decision highlighted significant failures in a government agency's disciplinary process. It also provided several poignant reminders to those involved in misconduct investigations as to how they should be conducted.
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In Gmitrovic v Department of Defence, Senior Deputy President Jonathan Hamberger lambasted the department for ''an extraordinarily drawn out'' investigation into alleged misconduct that was ''both amateurish and unfair''.
The commission heard an unfair dismissal application after Defence IT officer Darko Gmitrovic was sacked for allegedly misusing computers. Several broad allegations had been put to him, predominantly regarding excessive web browsing for personal purposes and the use of an anonymous search engine.
Hamberger's judgment identified several points of relevance to public servants involved in the disciplinary process, insights which should be heeded to prevent similar criticisms being placed at the door of other federal agencies.
Of primary concern in the finding that the termination was harsh, unjust and unreasonable was that the reasons used to justify the dismissal differed significantly from those originally put to Gmitrovic. Properly particularising the alleged misconduct is therefore essential in conducting an investigation that will withstand scrutiny before a court or tribunal.
In Etherton v Public Service Board of NSW, Supreme Court judge David Hunt held that ''the officer who has been charged is, in my view, entitled to proper particulars of the charge against him''. Broadly describing the allegation and offering evidence said to demonstrate the alleged misconduct was, Hunt said, insufficient - instead, ''it is only by knowing precisely the basis upon which the board has charged the plaintiff that he can properly prepare''.
Accordingly, in Gmitrovic, the fact that the initial particulars of the alleged misconduct put to the applicant differed significantly from the actual reasons for dismissal was significant for Hamberger: the latter reasons were not provided until the notice of intent to sanction, and Gmitrovic was thus ''not given an adequate opportunity to respond to those reasons''.
This failure to afford Gmitrovic basic procedural fairness, an essential element of any disciplinary investigation under the Public Service Act, underlines the need to properly particularise alleged misconduct, provide those particulars to the person accused of misconduct, and give them an adequate opportunity to respond.
In Gmitrovic, the details of the alleged misconduct were altered after Gmitrovic alerted the investigating officer to significant technical inaccuracies in what had been put to him. This led to the fatal flaw identified by Hamberger, and was ultimately the primary reason for the unfair dismissal finding. Although having to alter the details of alleged misconduct is in itself relatively unproblematic - understanding of evidence changes and allegations may need to be amended - it is essential that any amended allegations are put to the person accused of the misconduct, and that they are given an adequate opportunity to respond. Failure to do so will likely breach procedural fairness obligations and could endanger the integrity of the investigation.
Although not directly raised in Gmitrovic, Hamberger also appeared to allude to the issue of duplicity. In Woods v The Legal Ombudsman, the Victorian Court of Appeal commented that ''the rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law.'' In other words, one course of conduct should not, ordinarily, give rise to numerous, differing code of conduct breaches. This rule is not absolute, and indeed the flexibility of the concept led one commentator (cited in Woods) to suggest ''an objection that a charge is duplicitous will fail before disciplinary bodies and before courts of review on most occasions''. But public service decision-makers should nevertheless be wary about finding that a single action or course of action gives rises to a multitude of code of conduct breaches.
Such a position is further supported by the well-established purpose of public service disciplinary procedures: protection, not punishment. As then High Court justice Gerard highlighted in Police Service Board v Morris, disciplinary powers exist to protect public confidence in the agency, not to permit punitive action against wrongdoers. Accordingly, not only does finding that a single incident breaches multiple code of conduct provisions appear at odds with the protective purpose of APS disciplinary investigations, it may also impinge on the rule against duplicity.
Further, the Defence Department had issued a notice of intent to sanction, which criticised Gmitrovic for responding to the investigation with ''a sense of arrogance and condescension'', essentially because he had taken issue with factually incorrect assertions. During the hearing, the applicant's credibility was also attacked because he avoided an admission and failed to explain his conduct.
Again, Hamberger took issue with this approach. Notwithstanding that ''the applicant is certainly argumentative'' and ''rather literal-minded - verging on the pedantic'', his responses to the allegation were ''hardly unreasonable''. Gmitrovic could not be expected ''to reframe the allegation and then justify his conduct in the context of an allegation that had not been made''. It is important, therefore, not to dismiss legitimate responses to an allegation as arrogant or condescending simply because they question the accuracy of evidence. Indeed, the ability to challenge adverse evidence is a core element of natural justice and procedural fairness, and exercising that right should not be a factor in a sanction decision.
Finally, a modicum of common sense is essential to avoid investigations taking on a life of their own and ending up before a concerned fair work commissioner. The Gmitrovic decision was particularly critical of Defence's failure to consult Gmitrovic's supervisor to ascertain whether, in fact, his work performance was affected by the alleged excessive personal internet usage. Hamberger described this omission as ''bizarre'', saying he could not understand why such a meeting had not taken place, so as to ''enable a sensible discussion … to take place''. Instead, ''a bureaucratic process was put in train that appeared to take on life of its own''.
By sufficiently particularising the allegation, affording procedural fairness, being wary of duplicity and using common sense, decision-makers can ensure that the investigatory train does not run off its tracks.
John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in employment law. john.wilson@bradleyallenlove.com.au