My two major goals for 2014–15 are to consolidate the gains in productivity, quality and timeliness in the review function and to work with agencies to improve decision-making and the handling of reviews.
I will be working with the Group Manager, Ethics, delegates and the review team to ensure that the improvements in timeliness achieved in 2013–14 are maintained without any reduction in the quality of reviews. However, this goal will be influenced by fluctuations in the workload, which is demand-driven, and the available resources. If the number of applications continues to increase (and early indications are that this might be so), then it will be important to balance the available resources and the workload of my delegates and staff.
While I am well-pleased with the performance of the review function, I do not want to be complacent. I will continue to examine business processes to determine whether there are potential productivity savings through changing the way reviews are handled, more effective interaction with applicants to manage expectations and enhanced use of information technology tools such as online application forms. I anticipate further updates to my website to assist agencies and employees to understand the review process and my other functions.
Box M7: Code of Conduct case—reduction in classification for breach of trust
An APS 6 employee who applied to the Merit Protection Commissioner for review of actions had been reduced in classification to APS 5 for misconduct that included dishonesty in regard to an absence from work.
The misconduct related to an incident when, on return from lunch, the employee went to another area of the office rather than return to their work area, where they spent some time on the telephone attending to non-work-related matters. When emailed by a manager about their failure to participate in a meeting, the employee replied that they were in another meeting. The employee then asked a junior colleague who was a friend to ‘cover’ for them. The employee subsequently repeated the claim that they were in another meeting to the manager the next day. After it came to light that the employee may not have been truthful about their whereabouts, the employee was directed not to discuss the matter with anyone they perceived may have been involved. The employee then sent text messages to the junior colleague that the colleague found to be inappropriate.
Given the employee's senior role and the seriousness of the event, the agency decided to investigate the employee for failing to act with honesty and integrity in regard to an absence, using influence as a team leader to request a junior colleague to provide incorrect information in regard to this absence, failing to comply with a direction not to contact that junior colleague about the matter, and failing to act with respect and courtesy by sending inappropriate text messages to the junior colleague
The employee acknowledged the seriousness of their actions in misleading their manager and apologised, noting that the behaviour was out of character and that there were mitigating circumstances leading to the actions. The employee disputed that the text messages had breached the Code submitting that, while they may have been inappropriate, they were sent after work hours and did not relate to the working relationship. The employee later stated that they did not believe their actions had breached the Code as they were a reflection of an illness and they did not have the mental capacity to behave as expected of a well person.
The Merit Protection Commissioner upheld the agency decision that the employee had displayed a lack of honesty when the employee did not reply truthfully to the manager on two occasions. The employee also displayed a lack of integrity, and had improperly used their influence as a team leader by asking the junior colleague to cover for their absence after they had lied about their whereabouts. With regard to the text messages, the Merit Protection Commissioner found that they clearly referred to the matter of the employee's absence from work and, as such, the employee had been acting ‘in connection with APS employment’ when sending them. By sending them, the employee had failed to act with respect and courtesy, and failed to follow a direction not to make contact with the junior colleague about the absence matter.
In considering the employee's claims that they had not breached the Code as their actions were due to their ill health, the Merit Protection Commissioner noted that, even if an employee suffers from ill health, it does not prevent their behaviour from constituting a breach of the PS Act. The Code of Conduct provides a single standard of conduct for all employees. The extent to which health factors may have influenced an employee's conduct may, however, be relevant to the issue of sanction.
In considering sanction, the Merit Protection Commissioner looked at a number of relevant factors, including the serious nature of the misconduct—which it was considered had severely undermined the agency's confidence in the employee's ability to perform their duties at the APS 6 level—and the employee's response to the misconduct, as well as information about the employee's health and financial situation. The Merit Protection Commissioner did not consider there was evidence that the employee's health issues should be considered a major mitigating factor and, in all the circumstances, concluded the appropriate sanctions were a reduction in classification to APS 5 (top salary point) and a reprimand.
I will continue to focus on the performance of my office. Early in 2013–14, I will be trialling an online questionnaire to obtain feedback from review applicants on their experience with the review process in their agency and with their interactions with my office. The feedback will be voluntary. I will encourage review applicants to provide feedback which will be used to improve interaction between clients and my office and to provide more targeted information on my web pages.
During my time as Merit Protection Commissioner I have provided senior managers and human resources staff in agencies with feedback on specific cases and on systemic issues that I have observed through my casework with the aim of improving employment decision-making. Feedback from reviews is important to assist agencies to understand the reasons for recommendations and reflect lessons learned in their policies and procedures. I will also be exploring ways to assist agencies to improve the capability of their decision-makers and line managers through feedback from the review process. A desirable goal is to reduce the number of reviews and disputed employment decisions because managers and agencies are handling disputes quickly and fairly in the workplace. Options to provide direct feedback and lessons learned to line managers are being considered.
My message to agencies is that it is cost-effective to address matters at line manager level and that good review processes have the potential to save agencies money through quick resolution of disputes. This prevents escalation of disputes and reduces disharmony and the potential for reduced productivity in affected work areas.
I acknowledge that it is sometimes difficult for smaller agencies to develop the expertise to conduct timely and effective investigations, particularly into potential breaches of the Code of Conduct. While I can assist agencies through provision of information on my web pages, promotional material and practitioner forums, I now have the power to inquire into alleged breaches of the Code of Conduct. I anticipate that during the next 12 months this new function will be examined and further explored with agencies.
The demand for promotion review services and fee-for-service activities is largely dependent on agency recruitment activity. It is not easy to predict the levels of activity for 2014–15 as the interim recruitment arrangements are continuing at the end of the reporting period. I anticipate that recruitment activity will remain at low levels—at least for the first part of the year. While this workload is low, and resources are diverted to other areas, it will be important to maintain readiness to respond quickly to any increase in activity.
I consider there is a great potential for using ISACs to enhance the overall integrity of APS recruitment practices. In the current recruitment environment, I will be exploring the use of ISACs where agencies are seeking to fill a reduced number of jobs from the existing pool of staff at APS 1–6 classifications. Such selection processes are sensitive and it is important that stakeholders view the process as independent and impartial.
The review function does not operate in isolation. An understanding of, and involvement in, developments affecting the management of the APS and the wider Commonwealth public sector are critical for the performance of the Merit Protection Commissioner's functions. For example, the commencement of the PGPA Act and the consequential changes to the APS Code of Conduct will impact on reviews of determinations of breaches of the Code of Conduct.
I will continue to conduct trend analysis from the review casework within and across agencies. Such analysis enables agencies to identify workplaces that are not functioning optimally, tensions between their people management framework and workplace practice, and cultural issues. Through this assurance role, the review function provides a strategic value-add to agency people management practice.
I must be responsive also to the needs of the government. To this end, I will be ensuring that my functions are as efficient and cost-effective as possible and are adding value to the APS. Should there be decisions that affect my role and functions, my staff and I will remain responsive and support the effective implementation of any changes.