Far from backing down from my position in that article, and indeed in light of Lloyd's recent resignation under the cloud of a misconduct investigation, the time is nigh for me to revisit the inconsistency in the way the government approaches employment-related matters.

Specifically, the recent treatment of two senior public servants accused of misconduct stands in stark contrast to the experience of countless other public servants accused of breaching the APS code of conduct. The first of these instances is the much publicised termination of Roman Quaedvlieg's employment for (among other things) altering recruitment policies to the benefit of an Australian Border Force employee with whom he was romantically involved.

The second of these instances refers to the allegations of misconduct levelled against Lloyd. It is important to emphasise that it took over five months for (then) acting merit protection commissioner Mark Davidson to decide to investigate those allegations. As the investigation is now under way, my comments on Lloyd are strictly limited to the delay in commencing that investigation and do not in any way relate to the substance of the allegations.

While, in my experience, the public service will vigorously, even zealously, investigate and sanction misconduct among APS and SES employees, its response to allegations against both these statutory office holders appears comparatively feeble, at least from an outsider's perspective.

First, Quaedvlieg's misconduct.

The Canberra Times reported on March 26, 2018 that, the day after Quaedvlieg's employment was terminated, Home Affairs Department secretary Michael Pezzullo sent an "all-staff" email that described his sacking as a "sad day" for the department and argued "we should not judge [Quaedvlieg's] achievements through the lens of these most recent events". The sympathy expressed for Quaedvlieg, especially given the egregious nature of his misconduct, stands out in comparison to, in my experience, the cold and unceremonious treatment of APS and SES employees found to have breach the code. In fact, I would go so far as to say sympathy from management is the last thing offered to most APS and SES employees found to have engaged in misconduct.

Let's not pretend Quaedvlieg's conduct was anything other than personally interested favouritism that had the potential to seriously undermine the Border Force's reputation. The expression of sympathy and regret from none other than the relevant secretary could easily undermine the perception that the department took the misconduct seriously. That expression, to say the least, was unfortunate.

If the APS is to insist on imposing objectively severe sanctions for even minor alleged breaches of the code on the basis that those breaches risk harming the public service's reputation (which, in my experience, is often the case), then surely it follows that breaches of the code by the highest-ranking officials should be sanctioned with equal, if not greater, fervour? I fail to see how the differential treatment of Quaedvlieg compared with numerous other employees post-sanction for a breach of the code does not amount to hypocrisy.

Second, the allegations of misconduct against Lloyd.

Some background. About December last year, a complaint was made against Lloyd to the Department of the Prime Minister and Cabinet, which was subsequently passed to Davidson, alleging that Lloyd had breached the code. In broad terms, it seems the complaint centred on emails that Lloyd allegedly sent to the Institute of Public Affairs. This complaint then sat with Davidson until late May this year, whereupon a Senate estimates committee was told that a decision was yet to be made as to whether the complaint would be investigated at all.

Then, on June 3, Lloyd announced his early resignation. The latest development in this long-winded saga is that a letter dated June 14 was forwarded to an estimates committee on June 21, revealing that Davidson had finally decided that an investigation into the complaint should be conducted. However, it remains entirely possible that, given Lloyd's resignation, the investigation will not be allowed to run its full course. Moreover, as the exact nature of the complaint has not been made public, any reports of it and its content must, for now, be taken with a grant of salt.

The delay in responding to the complaint against Lloyd, and the very real likelihood of a toothless investigation given his resignation, stands in stark contrast to the experience of many APS and SES employees.

First, I have witnessed in my practice the public service responding with speed to anonymous complaints from members of the public concerning alleged misconduct that, objectively, cannot be said to pose any significant threat to the APS's reputation. The same cannot be said of the response to the complaint raised against Lloyd.

Second, the possibility of Lloyd "retiring" before the investigation has finished and thus potentially halting the investigation, according to Davidson,  is a luxury not afforded to many APS and SES employees who resign following misconduct allegations. It may surprise some readers to learn that a former employee can still be investigated even after their resignation, under section 24 of the Public Service Commissioner's own directions. Indeed, it is my experience that the resignation of an APS or SES employee who is subject to a misconduct investigation often does not bring the investigation to an end.

By contrast, the commissioner may avoid the findings of the investigation (whatever they may be) if it has not concluded by August 3, his last day in the job. Given the extremely slow pace at which affairs have progressed since the complaint was lodged in December, it is unlikely that the investigation will finish. Amid the seemingly endless cloud of uncertainty, one thing is quite clear: the treatment of this complaint is at odds with the aggressive prosecution experienced by other APS and SES employees.

The consequence of delaying the investigation (and therefore allowing Lloyd to resign and potentially avoid a finding) is that the exact nature of the allegations against him may remain forever hidden from the public. It is by no means a stretch to suggest that this could harm the public service's reputation – commentators have already made this observation.

Though justifications for the treatment of Lloyd and Quaedvlieg have been offered, while elsewhere the APS zealously pursues objectively minor allegations of misconduct on the basis of their potential to harm its reputation, it continues to open itself up to accusations of hypocrisy.

John Wilson is the managing legal director of BAL Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleague Robert Allen for his help in preparing this article. john.wilson@ballawyers.com.au