It is trite to say that no employee wants to be fired. Finding oneself on the wrong side of a disciplinary investigation is a daunting prospect. But while APS Code of Conduct investigations are hardly frequent, they are not exactly rare either: according to the latest State of the Service report, 656 disciplinary investigations were concluded in 2019-20 (the highest number since 2016).
Of these, a breach of the Code was found in 530 cases (80 per cent of the total), and 87 APS employees were terminated as a result. Many more received lesser sanctions, including salary reductions or reassignment. According to the same report, there are currently 150,474 employees in the APS. This means that, if numbers stay steady, approximately one in every 230 APS employees will face a Code of Conduct investigation in 2021, and one in every 1725 APS employees will be terminated this year for misconduct.
Fortunately for that small pool, one of the many benefits of public sector employment is the unparalleled array of protections available to public servants who feel they have been unfairly dismissed (or otherwise sanctioned). In addition to the employment protections available to private sector workers, government employees also benefit from a range of APS-specific legal rights. This article will explore these in turn (none of the below, of course, constitutes legal advice).
Firstly, and most obviously, a terminated public servant can sue the federal government for unfair dismissal under the Fair Work Act 2009 (Cth) (FWA). As a quick aside, it is important to note the Commonwealth of Australia is an indivisible legal entity. Although this rarely becomes an issue, technically speaking it is incorrect to sue a particular department (as often happens) - the Department of Home Affairs, say, does not have its own legal personality.
Ordinarily, employees are only protected from unfair dismissal if they have been employed for at least six months. They must also earn less than the high-income threshold (currently $153,600). However, employees covered by an enterprise agreement (most, if not all, public servants) are protected, even if they earn above the threshold.
A dismissal is unfair, for the purposes of the FWA, if it was harsh, unjust or unreasonable. These are overlapping but distinct concepts. A dismissal will be unjust if the government had no valid reason: for example, if the Fair Work Commission determines that Code of Conduct findings were, in fact, wrong and the alleged misconduct did not occur. Alternatively, even where a valid reason exists, the termination can be harsh where, for example, termination is disproportionate to the misconduct. If a public servant is successful in an unfair dismissal claim they can be reinstated or be awarded compensation (which is capped at six months' pay, and is typically far less).
The case of Gmitrovic v Department of Defence is instructive. The applicant was an APS5. He was accused of misconduct relating largely to IT usage. In an astonishing judgment, Senior Deputy President Jonathan Hamberger described the Code of Conduct investigation as being "extraordinarily drawn out affair", "amateurish" and "unfair". He also found that Mr Gmitrovic's alleged misconduct, which had been found by an APS decision-maker, was not in fact made out to constitute a valid reason. Accordingly, Hamberger found that the applicant's dismissal was "harsh, unjust and unreasonable", and ultimately awarded compensation equivalent to 16 weeks' salary.
The other primary FWA avenue is a general protections claim. Public servants (and most private sector employees) are protected from adverse action taken on the basis of the exercise, or proposed exercise, of a workplace right. Say, for example, a public servant makes inquiries about leave entitlements. This angers their boss, who concocts a disciplinary investigation and ultimately dismisses the employee. This would be unlawful adverse action. Notably, the FWA has a reverse onus mechanism: it is presumed the adverse action was done in response to the exercise of the right, and the employer must demonstrate that it was not, in fact, the substantial and operative reason for the action.
Additionally (and unlike their private sector counterparts), public servants have public law remedies potentially available to them. The decision to terminate an APS employee is a government decision like any other. That means it is amenable to administrative law judicial review, either pursuant to the Administrative Decisions (Judicial Review) Act 1977 or the Constitution.
Say, for example, a public servant is denied procedural fairness in a sanction decision, or the decision-maker relies on an irrelevant consideration in making the decision - in such cases, the employee could ask the Federal Court to order that the decision is invalid. This is also the case where a decision is so unreasonable or irrational that no reasonable person acting reasonably could have made it: although a high-bar, this threshold might be reached where, say, a public servant is terminated for being 10 minutes late to work.
Where an employee perceives that their termination was motivated by a discriminatory reason - on the basis of sex, race, age or disability - they may be able to bring a discrimination claim. Damages are the most common remedy in such litigation. Finally, there are a number of other, less common options. If the termination occurs as a result of whistleblowing, protections may be available under the Public Interest Disclosure Act 2013. If an employee suffers injury as a result of the termination (such as psychological injury), they can lodge a Comcare claim; in such cases, they will be required to show that termination of employment was not reasonable administrative action. In extreme cases, there may be grounds to sue on the basis of the tort of misfeasance in public office.
The avenue an aggrieved, terminated public servant might take will depend on a variety of factors and the facts of the particular case. Unfair dismissal claims are relatively simple, and typically dealt with expeditiously by the Fair Work Commission. General protections claims, on the other hand, are mediated by the Commission but ultimately determined in the Federal Court or Federal Circuit Court - which results in complexity and delay.
Both approaches are covered by the FWA's costs protections: which means that public servant litigants are not at risk of having to pay the government's (often substantial) legal fees if unsuccessful. However, this is a double-edged sword; if a public servant wins, they are unlikely to be able to recover their costs of litigation (which will therefore "eat into" any compensation).
Discrimination litigation does not benefit from a cognate costs protection, and is initially mediated by the Australian Human Rights Commission, before being determined (if mediation is unsuccessful) by the Federal Court or Federal Circuit Court. Judicial review is more complex and has no costs protections. Remedies are also discretionary: a judge could find that the government has acted unlawfully, but not award any remedy.
One might think, with access to the best legal advice money can buy, that APS decision-makers would get things right and leave no scope to be overturned on review (of whatever form). The litigious record shows this is not always the case. Public servants facing the spectre of disciplinary investigations and sanctions can take heart from the many cases, across Australia's courts and tribunals, which have found against the government in employment matters.
A Federal Court judge once described the federal government, in the litigation context, as a "behemoth". This may be so. But the APS behemoth is ultimately made up of human beings. Like any of us, these humans sometimes make mistakes, or decide on issues over which reasonable minds can differ. For public servants who find themselves subject to such circumstances, the law provides plentiful options for vindication.
- John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law (firstname.lastname@example.org). Kieran Pender is a visiting fellow at the ANU College of Law (email@example.com) and a consultant lawyer at Bradley Allen Love Lawyers. These views are their own.