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Merit Protection Commissioner's report, continued

Table M3: Reviews completed, by agency, 2010-11
Agency Primary reviews-Code of Conduct Primary reviews-other Secondary reviews Complaints by former employees Total
Australian Taxation Office 15 1 8 0 24
Department of Defence 4 0 6 0 10
Centrelink, including Centrelink Call 1 0 7 0 8
Department of Agriculture, Fisheries and Forestry 1 0 1 0 2
Department of Immigration and Citizenship 1 0 1 0 2
Seven other agencies (one review each) 4 0 3 0 7
Total 26 1 26 0 53

The types of employment matters for which review is sought are shown in Figure M1. Breaches of the Code of Conduct accounted for 26 of the reviewed cases (49% of the total)-an increase in the actual number of cases reviewed (32) but a decrease in the proportion reviewed (43%) compared with 2009-10. There was an increase in the proportion of performance management cases (11% in 2010-11 compared with 5% in 2009-10) and conditions of employment cases (17% in 2010-11 compared with 14% in 2009-10). There was a decrease in the proportion of harassment cases (7% in 2010-11 compared with 13% in 2009-10) and cases relating to workplace environments (9% in 2010-11 compared with 14% in 2009-10).

Figure M1: Number of cases reviewed, by subject, 2010-11



Note: The percentages may not total 100% due to rounding to the nearest whole number.

Breaches of the Code of Conduct

There were 65 applications received during 2010–11 for review of a decision that an employee had breached the Code of Conduct and/or of the sanction imposed for a breach. Twenty-six cases were reviewed during the year.

Cases may involve more than one breach of the Code of Conduct. Inappropriate use of information technology, including internet and email, continues to be the predominant action reviewed with 12 cases. Nine of these cases concerned the inappropriate use of email systems, including the inappropriate distribution of email messages or images; the other three involved overuse and inappropriate access.

Three cases were primarily concerned with behaviour towards colleagues, including allegations of harassment and lack of respect in the workplace. Five cases concerned employees’ failure to record their attendance accurately.

There were seven cases in which employees were found to have failed in their duty as public servants. In one case this involved a failure to declare a conflict of interest and in another two, the employees were accused of inappropriately disclosing information. The remaining four cases involved other inappropriate behaviour.

The Merit Protection Commissioner confirmed the agency’s decision in 16 of the 26 Code of Conduct decisions reviewed. In the remaining 10 cases the Merit Protection Commissioner recommended a variation to either the agency’s determination of a breach or the sanction imposed.

In three cases, the Merit Protection Commissioner found that the employee had breached the Code of Conduct but took a different view from the agency decision-maker about which elements of the Code of Conduct had been breached. In another three cases the Merit Protection Commissioner made a recommendation to reduce the sanction.

In the remaining four cases, the Merit Protection Commissioner recommended that the determination that a breach of the Code of Conduct had occurred be set aside because of procedural defects, noting both errors in the process and a lack of evidence to support the findings of one case.

Investigation of complaints by former employees

Regulation 7.2 provides that the Merit Protection Commissioner may investigate a complaint by a former APS employee that relates to the employee’s final entitlements on separation from the APS. During 2010-11, one application was received under this Regulation. The application was not accepted as the review request concerned an action taken while the applicant had still been an employee and did not fall within the provisions of Regulation 7.2.

Review of promotion decisions

The Merit Protection Commissioner conducts merit review of promotion decisions made for jobs in APS classification groups 2 to 6. These reviews are conducted by a three-member Promotion Review Committee comprising a nominee from the relevant agency, a convenor and a third member nominated by the Merit Protection Commissioner.

The only ground for a review of a promotion decision is greater merit. The committee has the power to confirm the promotion decision made by the agency or substitute a different decision.

Details of the promotion review caseload are in Table M4. In this table, ‘case’ means an application by one or more APS employees for review of a promotion decision (or decisions) arising from a discrete agency selection exercise. Target times are 12 weeks for cases with more than 10 parties and eight weeks for all others.

The number of applications for promotion reviews (92) has increased by over 55% compared with 2009-10 levels and has nearly returned to the 2007-08 level after falling to 58 and 59 in the intervening years. The number of Promotion Review Committees convened to consider them (69) has doubled since 2009-10. The two cases on hand at 30 June 2011 were within the target times.

Both the number of cases finalised within the year and the number reviewed in 2010-11 have more than doubled over 2009-10. At the same time the percentage of review cases completed within the target times (86%) has increased compared with 2009-10 (47%). Five of the 10 cases completed outside of the target time were less than three days outside.

Table M4: Promotion review caseload, 2009–10 and 2010–11
Promotion review cases 2009-10 2010-11
Note: A target of 12 weeks for reviews with more than 10 applicants was introduced in 2010-11.
On hand at start of year 1 13
Received during the period 59 92
Reviewed 34 70
Not accepted 1 0
Lapsed or withdrawn 12 33
Total finalised during period 47 103
On hand at end of year 13 2
Target completion time (weeks) 8 8 or 12
Completed within target time (number) 16 60
Completed within target time (percentage) 47% 86%

Table M5 provides information on the agencies whose promotions attracted review applications as well as a breakdown of the number of ‘active’ and ‘protective’ applications. Unsuccessful candidates for a promotion may lodge an ‘active’ application seeking review of a promotion decision. Employees who have been promoted and whose promotion may be subject to review may lodge a ‘protective’ application against the promotion of other successful candidates.

During the year, applications for reviews were received in relation to promotion decisions made in 15 agencies. The three agencies with three or more applications for review are identified. Twelve other agencies with fewer than three applications for review are not separately identified.

Promotion Review Committees varied 12 (2.5%) of the 480 promotions reviewed. This is slightly higher than the 2% of promotion decisions varied in 2009-10. In recent years the proportion of decisions varied has fluctuated between 2% and 5%. The small proportion of decisions varied over years, despite fluctuating levels of APS recruitment, indicates that agency recruitment decision-making at these classification levels is effective.

The size of cases more than doubled in 2010-11, with 423 applicants compared to 170 in 2009-10. In previous years, there have been instances of agency selection exercises that have resulted in promotion review applications of 100 or more. This commonly occurs in ‘bulk’ recruitment rounds and can significantly delay the capacity of agencies to fill vacant jobs.

This year the largest number of applications for a single finalised exercise was 52 in a Centrelink review. Eleven other cases had 10 or more review applications (compared to four in 2009-10), with 67% having five or fewer applications. The average number of applications per case was six, compared with 3.4 in 2009-10.

Centrelink accounted for half of the finalised cases (17), with the number of applicants in each case ranging from one to 52.

Table M5: Review of promotion decisions, by agency, 2010-11
Agency Total applications received ‘Active’ applications received ‘Protective’ applications received Promotion decisions considered Promotion decisions varied
Note: An APS employee may make an application for review of one or more promotion decisions. Not all applications are considered by a Promotion Review Committee. Some applications are withdrawn, held invalid or, in the case of ‘protective’ applications, not activated.
Centrelink 211 74 137 164 7
Department of Immigration and Citizenship 130 21 109 207 1
Australian Taxation Office 60 25 35 52 3
Twelve other agencies 22 20 2 57 1
Total 423 140 283 480 12

Independent Selection Advisory Committees

Independent Selection Advisory Committees (ISACs) are established by the Merit Protection Commissioner at an agency head’s request, usually on a fee-for-service basis. ISACs are independent three-member committees that undertake a staff selection exercise on behalf of agencies and make recommendations to the agency about the relative suitability of candidates.

An ISAC consists of a convenor nominated by the Merit Protection Commissioner and two members, one nominated by the Merit Protection Commissioner and one nominated by the agency head. ISACs work within agency recruitment policies and have the flexibility to accommodate a range of selection assessment techniques.

ISACs may be used for any job vacancies in APS classification groups 2 to 6. An ISAC’s recommendation is not binding on an agency, but if it is accepted, any resulting promotions are not subject to review.

Agencies may choose to use ISACs for a variety of reasons. The most common reasons are to provide assurance about the fairness and integrity of their recruitment decisions and to avoid delays in placing staff resulting from review of promotion decisions. An order of merit established by an ISAC can also be used to fill similar employment opportunities for 12 months from the date of the original vacancy notification.

Table M6 provides information on the number of ISACs established in 2010–11 compared with 2009–10.

The number of requests for ISACs in 2010-11 was only slightly less than in 2009-10 (54 compared with 56). This is higher than in 2008-09 (41 requests) but significantly lower than in 2007-08 (101 requests).

Table M6: Independent Selection Advisory Committees, 2009-10 and 2010-11
Note: The number of cases on hand at the end of 2009-10 is reported as 14 in Table M6 on page 98 of the 2009-10 annual report. This was a data error which has been corrected in the table above as marked by *. The correct figure is 15.
2009-10 2010-11
On hand at start of year 4 15
Received during the period 56 54
Completed 43 50
Lapsed/withdrawn 3 8
Total finalised during the period 46 58
On hand at end of year *15 11

While interest in the use of ISACs has been steady, the data suggests that on average the ISACs have been larger as measured by the number of job vacancies to be filled and the candidates considered. Data on the number of candidates is available for 27 completed ISACs but is unavailable for the remaining 24, as a result of data recording problems arising from the transition of the ISAC function to a new office. Changes to procedures have been implemented to ensure that this data is recorded.

For those ISACs where data is available, 11,692 applications were considered in 2010–11 and 1,948 candidates were recommended for placement in jobs, as detailed in Table M7. In 2010–11, not including 24 ISACs for which there is incomplete data, the average number of applications for an ISAC was 433 applicants with 72 recommendations.

Table M7: Independent Selection Advisory Committees, by agency, 2010-11
Agency Committees established and completed Candidates considered Candidates recommended
Department of Defence 11 448 91
Australian Taxation Office 6 9,299 1,330
Australian Quarantine and Inspection Service 1 88 20
Department of Foreign Affairs and Trade 2 694 116
Bureau of Meteorology 2 16 6
Department of Immigration and Citizenship 1 872 171
Department of Agriculture, Fisheries and Forestry 4 275 214
Other 24 na na
Total 51 11,692 1,948

Employment-related services (fee-for-service)

The Regulations provide that the Merit Protection Commissioner may undertake a range of employment-related functions on behalf of non-APS bodies, such as Commonwealth authorities to which the PS Act does not apply or other government bodies. The Merit Protection Commissioner may charge a fee for such services. Some of the services are provided on an ongoing basis under a memorandum of understanding.

Fee-for-service work can include staff selection services and training relevant to the Merit Protection Commissioner’s functions, as well as investigating grievances and providing mediation services and career advice. Over the last few years, a significant proportion of this fee-for-service work has been the provision of members of selection panels for the Australian Federal Police (AFP).

Table M8 provides information on the level of fee-for-service activity performed by the Merit Protection Commissioner in 2010-11, in comparison with the previous year.

The fee-for-service work in 2010-11 was generated from staff selection services provided to the AFP and APS agencies.

Table M8: Other fee-for-service functions-workload and work completed, 2009-10 and 2010-11
Other fee-for-service functions
2009-10 2010-11

Note: The number of cases on hand at the end of 2009–10 is reported as 13 in Table M8 on page 99 of the 2009–10 annual report. This was a data error which has been corrected in the table above as marked by *.

On hand at start of year 3 16
Received during the period 70 48
Completed 59 52
Lapsed/withdrawn 1 8
Total finalised during the period 60 60
On hand at end of year 16 4

The number of fee-for-service requests received in 2010-11 fell by 31% compared with 2009-10 (see Table M8). The lower number of requests also resulted in a 12% decrease in the number of completed services in 2010-11.

Whistleblowing

The PS Act and Regulations provide a scheme for APS employees to report alleged breaches of the Code of Conduct (such reports are known as whistleblowing reports).

Agency heads are responsible for establishing procedures for handling whistleblowing reports. In the first instance, such reports are expected to be made to, and investigated by, the relevant agency head. Where the employee is not satisfied with the agency’s response to their report, or in other circumstances (for example, where it is not appropriate for the agency head to deal with the matter), a whistleblowing report may be referred to Commissioner or the Merit Protection Commissioner. Information on whistleblowing reports made to the Commissioner is contained in Part 2 of the Commissioner’s annual report.

In 2010-11, the Merit Protection Commissioner received eight whistleblower reports, two more than in 2009-10. The target of 70% of applications acknowledged within six weeks of receipt was met. Table M9 shows action taken by the Merit Protection Commissioner in response to these cases. Of the two matters finalised in the year, one was referred to the agency head for investigation and the second was considered as invalid as it was not an APS matter. There were eight reports on hand at the end of the reporting period.

The complaints received this year from public servants concerned allegations of bullying and harassment, making false complaints and failure to follow agency procedures.

While the number of whistleblowing reports lodged is low, they often concern complex interpersonal matters and the issues can take a long time to assess, including whether any or all of the matters have been appropriately investigated by the agency in the first instance.

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Table M9: Whistleblower cases received by the Merit Protection Commissioner, 2009-10 and 2010-11
Whistleblower complaints 2009-10 2010-11
Number of reports
Cases on hand at the start of the reporting period 3 2
Received 6 8
Finalised 7 2
On hand at the end of the reporting period 2 8
Source of reports
Current APS employees 5 6
Anonymous 1 2
Action by Commissioner
Referred to agency head for consideration 3 1
Investigated under whistleblowing powers 2 0
No further action or referred elsewhere 2 1

Other functions

Under the PS Act, the Public Service Minister can ask the Merit Protection Commissioner to inquire into an APS action and report to the minister on the results of the inquiry. No such requests were received during the reporting period.

The PS Act also provides for the Merit Protection Commissioner to inquire into alleged breaches of the Code of Conduct by the Commissioner and to report to the Presiding Officers on the results of such inquiries. One inquiry was finalised during the reporting period. The Merit Protection Commissioner concluded that there was no basis to conduct any further inquiry into the conduct of the Commissioner.

Reviews of employment actions-notable issues and/or trends arising from the casework

This year there was an increase in the number of Code of Conduct cases in which the Merit Protection Commissioner recommended that the determination of a breach or the sanction decision be set aside. A recommendation to set aside such a decision is not made lightly, given the implications for both the employee and the agency in prolonging or reopening an investigation. However, the cases raised issues about both the quality and fairness of the decision, and are indicative of the valuable feedback loop provided by the review function.

The decisions agencies make arising from Code of Conduct investigations are important. They are important to the employee because of the implications for that person’s reputation and future employment opportunities. They are important to the agency because these decisions assist in establishing appropriate standards of behaviour and provide assurance that the agency operates with the appropriate level of integrity.

The cases described in this section suggest that sometimes Code of Conduct decision-makers do not adequately understand the process of administrative decision-making and, in particular, their obligations under law. They also sometimes have difficulty articulating reasons for decisions, including explaining the way that apparent contradictory evidence has been assessed and a conclusion reached about the facts of a case. This is an area in which agencies may need to improve the capabilities of employees performing this important role and invest in training and development for this purpose.

The Administrative Review Council (ARC) has published best practice guides on decision-making, which cover making lawful decisions; natural justice; evidence, facts and findings; giving reasons for decisions; and accountability. They are an important reference tool for people making administrative decisions and a useful supplement to information that agencies provide decision-makers and delegates on their role and functions. These guides are available on the publications page on the ARC website at www.ag.gov.au/arc.

Code of Conduct decision-making

In Code of Conduct review cases, the Merit Protection Commissioner is required to consider, as a threshold matter, whether the case raises issues of procedural fairness or compliance with agency procedures, or any other concerns that might lead to a conclusion that there were serious defects in the decision-making process. Where the Merit Protection Commissioner identifies such a concern, her review is unable to proceed to consider the merits of the case. In these circumstances, the Merit Protection Commissioner must refer the matter back to the relevant agency with a recommendation that the decision be set aside. One of the consequences is that agencies then need to give consideration to whether they re-investigate the matter or make another decision with a different decision-maker.2

The following cases examine a small number of Code of Conduct reviews where the Merit Protection Commissioner considered that there were substantial procedural defects, leading to a decision that was incorrect and could not be sustained. These all concerned breaches of procedural fairness, although some of these decisions also failed to comply with the agency’s procedures for investigating suspected misconduct.

Cases involving issues of procedural fairness

Procedural fairness requires that a decision be:

  • free from bias (or an apprehension of bias) on the part of the decision-maker (the bias rule)
  • rational, in that it is based on evidence that is logically capable of supporting the facts (the evidence rule)
  • fair, in that a person likely to be adversely affected by the decision has an opportunity to present their case and to have their response taken into consideration before the decision is made (the hearing rule).

In one case reviewed by the Merit Protection Commissioner, the sanction decision-maker advised the employee under investigation that the agency head was ‘furious’ about the employee’s behaviour. The ARC publication Decision making: Natural justice provides guidance on the bias rule of procedural fairness. It states:

The bias rule ... requires that a decision maker be impartial and free from actual or apparent bias. ‘Actual bias’ means that the decision maker has a predisposition to decide the matter otherwise than with an impartial and unprejudiced mind. ‘Apparent bias’ means that in the circumstances a fair-minded observer might reasonably suspect that the decision maker is not impartial ...

An apprehension or suspicion of bias can arise from things the decision maker says or does that suggest he or she ... has formed prejudgments and is not open to persuasion.

The Merit Protection Commissioner was of the view in this case that a fair minded observer, who had regard to the respective positions of the sanction delegate and the agency head and the sanction delegate’s knowledge of the agency head’s view, could quite reasonably apprehend bias on the sanction delegate’s part.3 This is not to suggest that the sanction delegate had been biased, just that there were grounds to support an apprehension of bias.

Consequently, the Merit Protection Commissioner was unable to consider the merits of the sanction decision. It was recommended that the sanction under review be set aside and that consideration be given to whether the sanction decision should be remade by a different decision-maker.

In another case, the decision-maker did not provide the employee with comments made by a witness, who had given evidence about the employee’s behaviour. The agency argued that the employee was aware of the issues discussed with the witness. The Merit Protection Commissioner took the view that the employee’s awareness was general only and that the employee could not have been aware of the specific nature of the witness’s evidence, which was adverse to his case.

In a third case, the employee was not informed of the elements of the Code of Conduct he was considered to have breached before the determination of a breach was made. In the Merit Protection Commissioner’s view, this was not only a breach of the agency’s procedures but also of procedural fairness. The Merit Protection Commissioner noted in this case that an employee is entitled to know the seriousness with which behaviours are viewed before responding to allegations. For example, an employee’s response to an allegation that they had failed to behave with care and diligence (subsection 13(2) of the Code of Conduct) is likely to be different from a response to an allegation that they had failed to follow a direction given by their employer (subsection 13(5) of the Code of Conduct). Depending on the specific circumstances of the case, a breach of subsection 13(5) is likely to be viewed more seriously than a failure to show the appropriate care and diligence.

In a fourth case the agency decision-maker failed to comply with all three elements of procedural fairness. This case in particular demonstrated poor reasoning on the part of the decision-maker. The Merit Protection Commissioner found that:

  • some of the findings made by the decision-maker were not based on any evidence (as far as the Merit Protection Commissioner could determine from the material gathered during the misconduct investigation) and the decision-maker did not explain the reasons for making particular findings (the evidence rule)
  • the statements made by the decision-maker in the decision failed to properly and genuinely consider the response made by the employee under investigation to the evidence (the hearing rule)
  • the decision-maker appeared to have ignored evidence or dismissed it without explanation, giving rise to a suspicion that the decision-maker had pre-judged the case and was not open to persuasion (the bias rule).

A poor approach to decision-making results in the escalation of issues, the continued frustration of the employee and prolonged disruption in the workplace. Poor decision-making also reinforces in the mind of the employee, their perceptions of the agency’s shortcomings, and can diminish the messages agencies are seeking to reinforce about appropriate standards of behaviour.


Footnotes

2 This is as a result of the decision in Walworth v Merit Protection Commissioner & Anor [2007] FMCA 24 (Walworth).

3 The decision in Mongan v Woodward [2003] FCA 66 is relevant in this context.