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Review of performance

The Commission is included in the Department of the Prime Minister and Cabinet’s Portfolio Budget Statements. The Australian Public Service Commissioner, as head of the Commission, is responsible for the Commission’s financial and human resources and for assessing the level of the Commission’s achievement against its outcome.

The performance indicators and targets relevant to the Merit Protection Commissioner’s functions are provided under ‘Program component 1.1.1—APS people and organisational performance’ in Part 2 of the Australian Public Service Commissioner’s annual report.

The information on activity and performance provided below in Tables M1 to M9 refers to the Merit Protection Commissioner’s statutory functions.

Review of employment actions

Section 33 of the PS Act and Part 5 of the Regulations provide a scheme for the review of a broad range of employment actions affecting individual APS employees and, in limited circumstances, former employees. Certain employment decisions, most notably termination of employment, are excluded from the review framework by the legislation.

The three main categories of reviews conducted by the Merit Protection Commissioner are:

  • reviews of breaches of the APS Code of Conduct
  • reviews of other employment actions
  • reviews of promotion decisions.

The tables refer to ‘primary’ and ‘secondary’ reviews. Primary reviews are reviews conducted by the Merit Protection Commissioner without first being reviewed by the agency head. The majority of primary reviews involve reviews of decisions that an APS employee has breached the Code of Conduct, and/or sanctions imposed as a result of a breach of the Code.

Secondary reviews are conducted by the Merit Protection Commissioner in circumstances where:

  • the employee is not satisfied with the review conducted by the agency head
  • the agency head has told the employee that the matter is not reviewable, but the Merit Protection Commissioner considers that it is.

Figure M1 shows the trends in review casework over the last six years.

Figure M1: Trends in review caseload, 2007–08 to 2012–13

Table M1 provides information on the number of applications for review (other than promotion review) received and reviews completed in 2012–13. Table M2 provides information on the timeliness with which this function was performed. Both tables compare results for 2012–13 with 2011–12.

Table M1: Review of employment actions workload for 2012–13 by type of review, compared with total reviews in 2011–12
Cases Primary reviews—Code of Conduct Primary reviews—other Secondary reviews Complaints by former employees Total
2012–13 2011–12 2012–13
On hand at start of year 29 4 27 0 141 60
Received during the period 47 12 130 3 151 192
Total cases 76 16 157 3 292 252
Reviewed 34 2 46 0 95 82
Not accepted 11 9 56 3 94 79
Lapsed or withdrawn 12 3 24 0 43 39
Total finalised during period 57 14 126 3 232 200
On hand at end of year 19 2 31 0 60 52

In 2012–13, the Merit Protection Commissioner received 192 applications for review and carried over 60 cases from the previous year. This represents a 26% increase in applications compared with 2011–12. Applications for secondary review increased by 55% whereas reviews of Code of Conduct decisions decreased by 16%. However, the total review workload fell by 14% owing to the smaller number of cases carried over from 2011–12 compared with the previous year.

A total of 200 cases were finalised in 2012–13, of which 82 were reviewed (that is, they were not ruled ineligible or withdrawn before the review was finalised). Of the 60 cases carried over from 2011–12, 59 were finalised in 2012–13. The one case not reviewed by the end of the year was particularly complex and was finalised in August 2013.

In 2012–13, 31% of applications received, or carried over from 2011–12, were not accepted for review. This is a similar proportion to 2011–12.

Eleven applications for a review of a Code of Conduct decision were not accepted in 2012–13 as they were out of time.

Employees are able to apply to the Merit Protection Commissioner for a primary review of action if the agency head was directly involved in the action; or it is not appropriate because of the seriousness or sensitivity of the action for the agency head to deal with it; or the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action. Nine applications of this type were not accepted for review in 2012–13, generally because the delegate considered that the matters were appropriate for the agency head to review.

The proportion of applications for secondary review not accepted (36%) was lower than in 2011–12 (41%), but higher than in 2010–11 (17%). Of the 79 applications not accepted for review in 2012–13, the applicant was advised in 25% of cases to lodge an application with their agency as no primary review had been conducted. A further 24% of cases were out of time, and in 26% of cases a review was not justified in all the circumstances—for example, the agency had already addressed the employee’s concerns and nothing could be achieved by reviewing the matter further. The remaining 25% of cases were not accepted for a variety of reasons, including that the application was outside of jurisdiction or that the application was about a matter that fell into one of the categories of non-reviewable actions set out in Schedule 1 to the Regulations.

The policy approach publicly released in April 2012 about the way the Merit Protection Commissioner would exercise discretion not to undertake a review when it is considered one is not justified ‘in all the circumstances’ is being monitored carefully. The indications are that the policy is effective in terms of balancing fairness to the applicant, the efficient handling of reviews and good employment decisions.

The target timeframe for completion of primary and secondary reviews is 14 weeks from receipt of application. The Merit Protection Commissioner aims for timely review without any loss in the quality of the review. Timely resolution of cases is beneficial for both the employee and employer as it improves the prospect of achieving a positive workplace culture and minimises the impact on the individual, colleagues and the agency.

Table M2: Timeliness in handling reviews, 2012–13 compared to 2011–12
Review type 2011–12 2012–13
Average time to complete reviews (weeks) Completed within target time frames (%) Average time to complete reviews (weeks) Completed within target time frames (%)
* Only one primary review other than a Code of Conduct review was finalised in 2011–12; therefore; this is the actual time taken.
Primary reviews—Code of Conduct 32.8 27 21.85 67.6
Primary reviews—other 25.7* 0 25.5 0
Secondary reviews 40.4 10 19.57 73.9
Former employees 0 0 0 0
Total 36.8 18 20.66 69.5

There has been a significant increase in the percentage of cases completed within target times in 2012–13 (69.5%) compared to 2011–12 (18%) and 2010–11 (39.6%). This improvement may be attributed to a combination of a smaller number of cases carried over from 2011–12, the greater experience and confidence of the review team and work undertaken to streamline handling of review cases.

The average time for Code of Conduct and secondary reviews fell correspondingly in 2012–13. The overall average time taken to finalise a case was just under 21 weeks compared to 37 weeks in 2011–12. Seven reviews were highly complex and took more than a year to finalise.

The length of time between the receipt of an application and finalising a review is influenced by a range of factors, including those that mean a case cannot be actively worked on by the review team. Reviews are placed ‘on hold’ while the reviewer is waiting for an action to occur that is outside of their control, such as waiting for papers, or a response from either the agency or an applicant. The average time on hold for a finalised review is nine weeks. Agency delays in providing information accounted for 62% of the time on hold and delays in providing information or unavailability of the applicant accounted for a further 27%. The remaining 11% was mainly due to public holidays.

Withdrawn, lapsed or not accepted cases may also take time. This is largely because inquiries to reach a conclusion that an application will not be accepted can take time, or work may have been undertaken to progress the review before it is withdrawn or it becomes clear that the application has lapsed. The average time taken to deal with a withdrawn or lapsed review was just over 14 weeks in 2012–13 and nearly 11 weeks for a review not accepted.

Table M3 breaks down the number of reviews by agency.

Table M3: Reviews completed, by agency, 2012–13
Agency Primary reviews—Code of Conduct Primary reviews—other Secondary reviews Complaints by former employees Total
Department of Human Services 6 0 20 0 26
Department of Defence 5 0 10 0 15
Australian Taxation Office 10 0 4 0 14
Department of Immigration and Citizenship 4 0 2 0 6
Australian Customs and Border Protection Service 2 0 2 0 4
Department of Health and Ageing 1 0 1 0 2
Department of Agriculture, Fisheries and Forestry 1 0 1 0 2
Bureau of Meteorology 0 0 2 0 2
CrimTrac Agency 0 2 0 0 2
Nine other agencies (one review each) 5 0 4 0 9
Total 34 2 46 0 82

As would be expected, the agencies with the highest number of applications for review were the larger employers, namely the Department of Human Services, the Department of Defence and the Australian Taxation Office. These three agencies accounted for two-thirds of the completed reviews—a similar result to 2011–12.

The types of employment matters for which review is sought are shown in Figure M2.

Figure M2: Cases reviewed by subject, 2012–13

Determinations of breaches of the Code of Conduct accounted for 34 of the reviewed cases, compared with 44 in 2011–12. Code of Conduct cases fell as a proportion of the number of cases reviewed (41% in 2012–13 compared with 46% in 2011–12).

There were increases in the proportion of performance management cases reviewed (26% compared with 14% in 2011–12), disputes around duties (9% compared with 4% in 2011–12), and conditions of employment (20% compared with 16% in 2011–12). All other categories showed a decrease. Cases relating to the workplace environment fell to 1% (from 5% in 2011–12) and harassment cases fell to 2% (from 7% in 2011–12).

The Merit Protection Commissioner may recommend to an agency head that a decision be set aside, varied or upheld. There were differences in the outcomes by the type of review.

In 2012–13, nearly 70% of the finalised reviews (82) resulted in a recommendation to the agency head to uphold the original agency decision. However, a much higher proportion of secondary reviews were upheld (80%) compared with review of Code of Conduct decisions (56% upheld). There was variation also in the proportion of decisions upheld by type of Code review16with 71% of sanction only decisions upheld compared to 50% of determination only decisions and 43% of cases involving both breach and sanction decisions. One non-Code case was resolved through follow-up discussion with the agency.

Breaches of the Code of Conduct

APS employees who are found to have breached the Code of Conduct can apply directly to the Merit Protection Commissioner for a review of the determination that there had been a breach, and any sanction imposed for a breach of the Code.

There were 46 applications for review of a decision that an employee had breached the Code of Conduct and/or the sanction imposed for a breach, and 29 cases on hand at the start of the year. Thirty-four cases were reviewed during the year.

Employees who are found to have engaged in misconduct may have determinations made about their behaviour that relate to more than one element of the Code of Conduct—for example, sending an offensive email may be both a misuse of Commonwealth resources and a failure to treat colleagues with courtesy and respect.

Allegations of bullying behaviour in the workplace were a significant factor in the Merit Protection Commissioner’s Code of Conduct review caseload in 2012–13. There were 14 cases where this was a significant reason for the agency investigating the employee for suspected misconduct. Of these, there were three cases where employees were investigated for behaviour towards their supervisors, four cases where supervisors were investigated for bullying behaviour towards subordinates, six cases of behaviour towards colleagues and one case of an APS employee’s behaviour towards clients in a regulatory role.

One case of sexual harassment of a colleague was reviewed. One case of a suspension from duty during a Code of Conduct investigation for sexual harassment of a client was also reviewed.

The management of attendance also featured in a number of cases (five out of 34) in the review caseload, including false recording of attendance and dishonesty in claiming sick leave.

Two cases of public comment on agency administration and government policy were reviewed—one involving an employee who spoke to the media and one involving inappropriate and unprofessional comments to an administrative review body.

Five cases of unauthorised access to client records in agency databases were reviewed, including access to the records of the review applicant’s family members.

Box M6: Code of Conduct case—sexual harassment and lack of procedural fairness

An employee who applied to the Merit Protection Commissioner for review was found by their agency to have sexually harassed a colleague by making sexually explicit comments and behaving in an inappropriate way towards the colleague both at work and at work social functions.

When investigating the case, the agency gathered evidence from witnesses to some of the incidents. This evidence was inconclusive as the witnesses claimed to be unable to recall the details of particular incidents. In this case it was necessary to test the reliability of the evidence of the witnesses because the team in which this behaviour was alleged to have occurred met socially extensively and members of the team had developed close friendships.

The witness evidence also included statements from two senior managers who had not witnessed the alleged misconduct. One of the managers made adverse statements about the employee’s character based on general observations, including a statement that the employee was untrustworthy and lecherous. The manager also made statements about the circumstances that led to the complaint which were relevant to the credibility of the complainant.

The agency investigator did not put any witness statements to the employee and relied instead on inconclusive CCTV footage of two incidents.

Although the manager did not witness the behaviour, the manager’s evidence was relevant, credible and significant in the deliberations of the decision-maker, as it related to the character of both the employee and the complainant. The adverse evidence of the manager, or a reasonable summary of that evidence, was not put to the employee and therefore the Merit Protection Commissioner recommended that the decision be set aside on the basis that the employee was denied procedural fairness.

It can be difficult to investigate and reach conclusions about allegations of sexual harassment because the facts are often highly contested and the evidence of witnesses may be affected by gossip and personal loyalty to one party or another. However, sexual harassment is a serious matter and a finding of misconduct on this basis is significant. For this reason, in many cases it would be prudent for agencies to seek professional advice when investigating and making findings of fact in sexual harassment cases, including from legal advisers, to ensure that the process is procedurally fair, the evidence is properly tested and weighed and the reasoning underpinning the decision is sound.

Review of promotion decisions

The Merit Protection Commissioner establishes promotion review committees (PRCs) to conduct merits review of promotion decisions for jobs in APS classification groups 1 to 6. A PRC comprises a convenor, a nominee from the relevant agency and a third member nominated by the Merit Protection Commissioner.

The only ground for a review of a promotion decision is merit. The PRC 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.

Table M4: Promotion review caseload—2011–12 compared to 2012–13
Promotion review cases 2011–12 2012–13
Note: A target of 12 weeks for reviews with more than 10 applicants was introduced in 2010–11.
On hand at start of year 2 6
Received during the period 82 44
Total caseload 84 50
Reviewed 60 30
Not accepted 1 3
Lapsed or withdrawn 17 16
Total finalised during period 78 49
On hand at end of year 6 1
Target completion time (weeks) 8 or 12 8 or 12
Completed within target time (number) 57 30
Completed within target time (percentage) 95 100

Figure M3 shows how the PRC casework has fluctuated over the last six years.

Figure M3: Trends in promotion review caseload, 2007–08 to 2012–13

The number of applications for promotion reviews (44) decreased by 46% in 2012–13 compared to 2011–12. The number of PRCs convened to consider applications (30) fell by half in 2012–13.

Target times for promotion reviews are 12 weeks for cases with more than 10 parties and eight weeks for all others. In 2012–13 all review cases were completed within the target times. The case on hand at 30 June 2013 was within its target time of eight weeks.

Table M5 lists those agencies whose promotions attracted review applications, as well as a breakdown of the number of ‘active’ and ‘protective’ applications.

Table M5: Review of promotion decisions, by agency, 2012–13
Agency Promotion reviews finalised 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, are held to be invalid or, in the case of ‘protective’ applications, do not proceed to review.
Australian Taxation Office 16 31 20 11 23 1
Department of Human Services 6 58 8 50 55 0
Australian Customs and Border Protection Service 3 8 3 5 6 0
Five other agencies (with one review) 5 61 11 50 90 0
Total 30 158 42 116 174 1

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. This application will be considered by a PRC only if the employee’s promotion is overturned on review.

During the year, applications for reviews were received in relation to promotion decisions made in eight agencies. The three agencies with two or more applications for review are identified in Table M5. Five other agencies with one application for review are not separately identified.

PRCs varied only one (0.6%) of the 174 promotions reviewed. This is the smallest number of variations in recent years—the proportion of decisions varied has tended to fluctuate between 2% and 5% over the years. The small proportion of varied decisions in 2012–13 tends to indicate that agency recruitment decision-making at these classifications is generally effective. However, the existence of a promotion review mechanism, whether promotion decisions are overturned or not, also guards against non-merit-based decisions. Decision-makers are likely to be more careful with their assessments if they know that their decisions might be reviewed by an external, independent body.

In 2012–13, the size of cases (measured by the applicant field and the number of promotions involved) halved.

The largest number of promotion review applications considered by a single PRC was 39 in the Department of Immigration and Citizenship. Three other PRCs involved 10 or more parties. This compares with six PRCs considering 10 or more parties in 2011–12. The remaining reviews (87%) had four or fewer applications. The average number of applications for each finalised promotion review process was 5.3 and the average number of promotions considered by each PRC was 5.8.

Box M7: Advice to agencies to assist in the conduct of promotion reviews

Providing documents to applicants

The information supplied by the agency to the promotion review committee (PRC) relating to the original selection decision should also be made available by the agency to the parties to the promotion review. This assists the parties to the review in making a statement to the PRC setting out their claims for promotion.

As statements are due with the PRC within 14 days after the closing date for making applications, agencies need to provide access to the selection documents relating to parties within the 14-day period. Generally, access to information may only be given to candidates who are a party to the promotion review.

If there are delays in providing access to this material, it is important that the agency informs the office of the Merit Protection Commissioner of the delay and the reasons for it.

The type of information which needs to be made available includes:

  • the selection report or other document that explains the recruitment decision, including a comparative assessment of applicants
  • evidence in relation to the standard of work performance and personal qualities of the parties to the review, including results of any tests and referee reports
  • statements of parties to the review addressing the selection criteria.

Agencies are advised to consider including in selection guidance material notification that selection advisory committee documents should be readily accessible until any promotion review period has expired in case a PRC needs to be established. Agencies are also advised to ensure that they have identified someone with responsibility for liaising with the office of the Merit Protection Commissioner, and the PRC if necessary, in the event of a promotion review.

Advising applicants of their review rights

It is important for agencies to advise applicants for promotion of their review rights, including the 14-day deadline for lodging a promotion review (i.e. 14 days after a promotion for which they were an unsuccessful applicant is notified in the Public Service Gazette). It is also important for promotees to be advised of their rights to lodge a protective review.

There have been cases where recruitment areas within agencies have provided misleading advice to promotees in relation to protective reviews. A protective review involves lodging a review application against other persons whose promotions have been published in the Public Service Gazette from the same selection exercise. It does not prevent an unsuccessful applicant lodging a review against a promotion. What it does do is give promotees ‘a second chance’ by being assessed on their merits against other promotees nominated in their protective review should their promotion be overturned by a PRC.

Agencies need to be even-handed in the way they deal with all parties to a review and care needs to be exercised so that agencies do not create a perception of favouring the promotee.

Independent Selection Advisory Committees

ISACs are established by the Merit Protection Commissioner at an agency head’s request on a fee-for-service basis. ISACs are independent, three-member committees that undertake a staff selection exercise on behalf of an agency and make recommendations to the agency head about the relative suitability of candidates. They are an important component of the framework for protecting merit in the APS at the APS 1–6 classifications.

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.

An ISAC’s recommendation is not binding on an agency—however, if it is accepted, any resulting promotion decisions are not subject to promotion review.

Agencies may choose to use ISACs for a variety of reasons. The most common ones 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 the employment opportunity was first notified in the Public Service Gazette.

Table M6 sets out information on ISAC activity for 2012–13 compared with 2011–12.

Table M6: Independent Selection Advisory Committees, 2011–12 and 2012–13
  2011–12 2012–13
On hand at start of year 11 6
Received during the period 37 14
Completed 37 15
Lapsed/withdrawn 5 1
Completed 42 16
On hand at end of year 6 4

The decline in the number of requests for ISACs has continued in 2012–13, falling by over 62%. The decline is likely to reflect the fall in agency recruitment arising largely from budgetary pressures on APS agencies.

Figure M4 shows the decline in ISAC casework over the last six years.

Figure M4: Independent Selection Advisory Committees casework, 2007–08 to 2012–13

Table M7 sets out the number of ISACs established, by agency, and the number of candidates considered and recommendations made.

Table M7: Independent Selection Advisory Committees, by agency, 2012–13
Agency Committees established and completed Candidates considered Candidates recommended
Department of Agriculture, Fisheries and Forestry 4 361 105
Department of Defence 4 111 28
Australian Taxation Office 2 1,606 187
Department of Human Services 2 451 64
Australian Radiation Protection and Nuclear Safety Agency 2 68 9
Australian Customs and Border Protection Service 1 47 3
Total 15 2,644 396

In 2012–13, the average number of applications received per ISAC was 176, with an average of 26 candidates recommended. This compares with an average of 154 applications with 31 recommendations in 2011–12. The two ISACs conducted in the Australian Taxation Office represented 61% of all applications and nearly half of the number of candidates recommended. The applicant pools of the ISACs ranged in size from 12 to 1,028 candidates.

Box M8: Advice to agencies to maximise the benefits of Independent Selection Advisory Committees

An ISAC is intended to provide a streamlined, cost‐effective and timely merit-based selection process.

It is in the interests of the agency and the candidates for an ISAC to be finalised as quickly as possible as this allows for speedy staff placements and a more efficient workplace. It also ends uncertainty for the candidates involved. If an agency accepts the recommendation of an ISAC, any resulting promotions are not subject to the APS promotion review procedures.

The office of the Merit Protection Commissioner works with agencies to conduct an effective and efficient ISAC. Delays or problems in the ISAC process can be minimised by:

  • ensuring availability of panel members—agencies are advised to check that panel members selected are available for the duration of the ISAC and do not have planned leave
  • organising an initial planning meeting to ensure that the ISAC and the agency understand the selection methodology and processes and to enable review and approval by the ISAC of all proposed assessments to be used before advertising
  • the ISAC developing a project time line with the agency delegate and key stakeholders—this ensures that the delegate understands the ISAC and has no ‘surprises’ when they receive the final recommendations
  • the ISAC holding regular meetings with the delegate throughout the process—this ensures that the delegate has the opportunity to contribute to the information before an ISAC and the ISAC is aware of any issues with candidates’ performance or Code of Conduct issues before the final recommendations are given to the delegate.

Regular communication between the ISAC and the agency helps to develop an understanding of the process and ensures the process is appropriately collaborative (while maintaining the independence of the ISAC). This helps the delegate to understand and have confidence in the ISAC’s recommendations. Good communication between the ISAC and the agency also encourages the agency coordinators to refer issues to the ISAC and avoids actions that may be contrary to ISAC administrative procedures.

Employment-related services (fee-for-service)

The Regulations provide that the Merit Protection Commissioner may, but is not required to, 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 for a set period 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 career advice. In recent years, the majority of this fee-for-service work has involved providing members of selection panels for the Australian Federal Police (AFP).

Table M8 provides information on these services in 2012–13, in comparison with the previous year. For the last two financial years, the work completed for this category was staff selection work undertaken only for the AFP.

Table M8: Other fee-for-service functions—2011–12 compared to 2012–13
  2011–12 2012–13
On hand at start of year 5 7
Received during the period 33 36
Completed 29 39
Lapsed/withdrawn 2 1
Total finalised during the period 31 40
On hand at end of year 7 3

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 whistleblower reports). A whistleblower report differs from an application for review of action in that the person making the report might generally be expected to have no direct personal interest in the report. The review of action scheme is more appropriate for employees seeking to have an independent review of a matter affecting them in their employment. In 2012–13 Ms Godwin made clear in a number of forums that, in her view, a whistleblower under the APS scheme is an ‘informant’ or witness to misconduct.

Agency heads are responsible for establishing procedures for handling whistleblower 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 whistleblower report may be referred to the Merit Protection Commissioner or the Commissioner. Information on whistleblower reports made to the Commissioner is contained in Part 2 of his annual report.

In 2012–13, the Merit Protection Commissioner received six whistleblower reports, three less than in 2011–12. All applications were acknowledged within six weeks of receipt with follow-up action undertaken within the period. Whistleblowing cases often comprise large volumes of material and it can take some time to determine whether the application meets the jurisdictional requirements. Table M9 shows action taken by the Merit Protection Commissioner in response to these cases and in the previous three years.

The APS whistleblowing provisions are to be replaced from January 2014 when the Public Interest Disclosure Act 2013 takes effect.

Table M9: Whistleblower cases received by the Merit Protection Commissioner, 2009–10 to 2012–13
  Whistleblower complaints
2009–10
Whistleblower complaints
2010–11
Whistleblower complaints
2011–12
Whistleblower complaints
2012–13
Number of reports
Cases on hand at the start of the reporting period 3 2 8 2
Received 6 8 9 6
Total work load 9 10 17 8
Finalised 7 2 15 4
On hand at the end of the reporting period 2 8 2 4
Source of reports
Current APS employees 5 6 4 6
Non-APS employee or unknown 1 2 5 0
Action by Merit Protection Commissioner
Referred to agency head for consideration 3 1 0 0
Investigated under whistleblowing powers 2 0 10 1
No further action or referred elsewhere 2 1 5 3

The two inquiries underway at the start of the year were finalised. One complaint was not accepted as it was not a valid report and the second report was withdrawn by the complainant.

Two of the six applications received in 2012–13 have been finalised. One was not accepted and one investigation was undertaken which found no evidence that warranted a recommendation to the relevant agency head to investigate a potential breach of the Code of Conduct. There were four reports on hand at the end of the reporting period, all of which were less than eight weeks old.

The complaints received this year from APS employees largely concerned employment disputes, including allegations of bullying and harassment, poor handling of complaints and poor processes to manage compensation issues. There was also one complaint of poor management of a budgetary process which arose in the context of an employment dispute.

As most whistleblower reports concern employment disputes, the Merit Protection Commissioner and her delegates, in reporting to agencies on the outcome of investigations, aim to support agencies by identifying ways to strengthen their people management practices.

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.

Box M9: Review case—dispute about a return to work and victimisation for making a whistleblower report

An APS employee sought review by the Merit Protection Commissioner of the agency’s decision not to implement a return to work after a fitness for duty assessment which the applicant alleged constituted an adverse action taken against the employee for making a whistleblower complaint. Section 16 of the PS Act prohibits victimisation or discrimination of an employee because they have made a whistleblower complaint.

The employee was on extended leave for a medical issue and was directed to attend a medical examination conducted by an agency‐nominated medical practitioner (fitness for duty assessment). The medical practitioner concluded the employee was not fit for duty. Several months later the employee was again assessed by an employer‐nominated medical practitioner as fit for work but with the proviso that the employee not return to work in that agency. On the basis of this conflicting advice, the agency advised the employee that it did not consider they were fit to return to work. On review, the employee argued that the agency had disregarded the medical advice and that it should be allowed to return to work in a different part of the agency. The employee also alleged that the agency decision not to return them to work was an adverse action taken against them for making a whistleblower complaint.

The Merit Protection Commissioner considered that the agency’s decision was reasonable and that the medical practitioner’s opinion about where the employee should return to work was not the only relevant consideration. While a decision-maker can consider expert evidence, such as medical reports, they are not bound to accept it. In this case, in the view of the Merit Protection Commissioner there was conflicting medical evidence and the agency could not be confident that the employee was in fact fit to resume duty.

The Merit Protection Commissioner also concluded that as the agency’s interpretation of the medical officer’s report could be supported, the decision not to return the employee to work on receipt of that report was appropriate. The Merit Protection Commissioner concluded that the agency’s action was not evidence of a breach of section 16 of the PS Act.

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. No requests were received during the reporting period.