The Australian Public Service's employment disciplinary process is no fun for anyone.
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On the one hand, there are unhappy, emotionally invested employees. Regardless of guilt or innocence, they must face a slow and usually painful investigation process, and may well suffer reputation damage and loss of self-esteem along the way, if not depression and anxiety. If they are proved guilty of misconduct at the end of that process, they will at best have a blotted personnel copy book and at worst can lose their APS career. They are not in a good space. If there are errors in this process, many will resort to litigation to seek to protect one of their best assets: their employment.
On the other hand are the complainants, and the colleagues of the employee suspected of misconduct. These employees must cope variously with changed roles, workloads, reporting lines and productivity levels. They may need to give testimony for or against their workmates. They may seek vindication of perceived wrongs, or they may themselves be implicated, at least for the duration of the investigation.
In the middle of all this are the supervisors, HR staff, investigators and delegated decision-makers who must decide who, when and how to respond to any particular situation of alleged misconduct. Do they need to suspend? Do they need to proceed to investigate at all? If an investigation proceeds, is the employee actually guilty of misconduct? If the employee has misconducted themselves, what exactly should the agency do?
These decisions are made beneath the weight of a bewildering panoply of national legislation and regulation, the Public Service Commissioner's directions, agency-specific procedures and policies, and enterprise agreement provisions. And most of these ''rules'' require that, throughout the entire process, the employee be given ''procedural fairness'' - the content of which is left largely unspecified in these rules and, even at common law, is considered to be of no fixed meaning.
So what is the key to getting disciplinary decisions right?
The key is to understand the purpose underpinning all civil disciplinary decisions and procedures. You won't find the purpose of disciplinary decision-making outlined in the Public Service Act or its regulations, or in the commissioner's directions. You will find it in the common law that sits beneath it. Since at least NSW Bar Association v Evatt, the High Court has made it plain that the purpose of disciplinary procedures is protection, not punishment.
Disciplinary powers and procedures exist to protect the organisation's welfare and reputation. As then High Court justice Gerard Brennan put it in Police Service Board v Morris, their purpose is to protect public confidence in the agency, to ensure duties are properly performed and power is not abused. This means disciplinary sanctions are not penalties. There should be no element of retribution or punishment towards the employee concerned. The surest way to make sound, defensible disciplinary decisions, to interpret ''the rules'', and even to provide procedural fairness, is to use the ''protective purpose'' as the lens through which all disciplinary decisions are made.
Here are a few illustrations of the ''protective purpose'' at work.
A written complaint has come in about a one-off verbal outburst from a male APS employee to his junior colleague. The employee has no history of disrespectful behaviour and has worked in the public service for several years. He has apologised to his colleague, but she is assertive in pressing for her complaint to be ''formally investigated as bullying, and disrespectful conduct''. Should it?
Apply the protective purpose lens. From what mischief is the agency trying to protect itself? Is there a real risk of harm or reputation damage to the agency from this isolated act? Is there an alternative way of handling the complaint that would serve the protective purpose without punishing the employee? Considered answers to questions such as these will ensure that error is avoided.
The ''protective purpose'' will also help decision-makers decide on appropriate sanctions for proven misconduct. If the aim is to protect the agency's integrity, then sanctions must be consistent with that end. Excessive sanctions will be punitive, and so misconceived.
A common example is where a single-incident allegation is investigated and found proved, but the incident is cast as a breach of multiple provisions of the code of conduct (and values) in the Public Service Act. The finding of multiple breaches is used to impose a greater sanction than would be imposed for a single breach. This is known as ''duplicity'', and as a matter of law is simply not on, as the Victorian Supreme Court of Appeal pointed out in Woods v the Legal Ombudsman.
Let's consider the application of the ''protective purpose'' during a misconduct investigation under the APS code of conduct. A protective purpose means the investigator should approach the allegations and the investigation from a position of neutrality or disinterest. They are not out to ''get'' anyone or ''prove'' the allegations. The investigator in the relatively recent Federal Court case of Lohse v Arthur (No. 3) found this out the hard way. A public servant, Michael Lohse, was alleged to have made disrespectful comments and overtures to a female colleague, at a hotel with a group of other colleagues after business hours. One of the key issues was whether the alleged misconduct could be said to be ''in connection with employment''. The investigator was found to have put words into the mouths of witnesses, suggesting to them that the meeting's purpose was a ''debrief'', when none of the witnesses had used those words or anything akin to them. The judge found that these comments suggested the investigator had prejudged this critical matter. The investigator was not open to hearing the true facts, but was trying to prove the allegations. The disciplinary decision against Lohse was set aside.
So the lesson for those charged with applying disciplinary powers and processes in the APS is this: do so with a firm understanding of their proper protective purpose, and you are well on the way to avoiding disciplinary quagmires. And for employees charged with breaches of the code: if you're not guilty, of course, say so; but if you are or might be, focus your response (and the decision-maker's mind) on the protective purpose of the process that is being applied against you.
John Wilson is managing legal director of Bradley Allen Love Lawyers. john.wilson@bradleyallenlove.com.au