Biased investigator

A long standing employee was issued a letter stating that their agency had received information and allegations that could potentially constitute a breach or breaches of the APS Code of Conduct. The letter detailed several limited and general examples of the alleged behaviour, and informed the employee that an external investigator had been appointed to investigate the allegations and determine whether the employee had breached the APS Code of Conduct.

As part of the investigation, the employee participated in an interview with the investigator. In the final report, the investigator found that the employee had engaged in conduct that breached multiple sub-sections of the APS Code of Conduct (the Breach Decision). The employee submitted an application to the Merit Protection Commissioner (MPC) for review of the Breach Decision, raising a number of concerns about procedural defects in the investigation process. The agency own procedures require that investigators and breach decision makers conduct investigations consistent with the requirements of procedural fairness and other administrative law principles.

The MPC examined the interview between the employee and the investigator (via transcript and audio records) and found that the interview suffered from a lack of planning and preparation. The investigator provided large excerpts of evidence from multiple witnesses, which were not provided to the employee prior to the interview. During the interview, the investigator also referred to multiple incidents, dates and individuals in no apparent order or context, seemingly jumping from one issue to another. The investigator raised issues and allegations that were not articulated to the employee previously, nor had any apparent connection to the alleged behaviour.

The MPC observed that not only was the investigator’s interview of the employee disorganised, but the adopted tone was, at various times, dismissive, and accusatory. The investigator made negative and presumptive inferences about the employee's work capabilities and made direct statements that ultimately suggested that they did not bring an open-mind to the matter.

The MPC was of the view that the investigator's questioning featured negative assumptions and inferences. The investigator’s negative tone gave the impression that they interpreted the employee’s comments as being said in a particularly disrespectful and discourteous manner. The comments attributed to the employee were open to interpretation, but the way the investigator presented them at interview, suggested they had imbued them with a particular sense of severity.

There are two primary rules of procedural fairness: the ‘hearing rule’ is that people who will be affected by a proposed decision must be given an opportunity to express their views to the decision maker and the ‘bias rule’ is that the decision maker must be impartial and must have no personal stake in the matter to be decided.

The ‘Administrative Review Council Best Practice Guide: Natural Justice’ relevantly states:

‘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. It is not about whether an affected person thinks the decision maker is biased; it is about whether a fair-minded observer would reasonably suspect bias. An apprehension or suspicion of bias can arise from things the decision maker says or does that suggest he or she is either partial or hostile to one side or has formed pre-judgments and is not open to persuasion.

Considering the overall circumstances, and the cumulative effect of the various references noted within this case study, the MPC concluded that a fair-minded observer would apprehend that the investigator might not have brought an impartial mind to the question of whether the employee had engaged in the conduct alleged. For this reason, the subsequent findings and determination of the investigator that the employee breached the Code of Conduct was set aside.