Breach varied due to poorly crafted allegations

The Agency decided to commence a Code of Conduct investigation against the employee, and in crafting the allegations decided to also include allegations relating to the employee’s alleged inappropriate behaviour from two years ago. Namely, the employee was alleged, two years ago, to have used sexist language in front of a colleague when referring to a person who worked elsewhere in the Agency, and to a member of the public.

The employee was found to have breached the Code of Conduct, and subsequently applied to the Merit Protection Commissioner for review.

In respect of the recent allegations, the employee submitted that he was direct, but not rude, in his communication towards his colleagues, and he was constantly frustrated by the red tape imposed by his colleagues which prevented work from being done efficiently. In respect of the older allegations, the employee stated that his behaviour was not inappropriate, and he had used language which was commonly used in his community and past workplaces and that no offence was intended.

In respect of the older allegations, the delegate of the MPC recommended that while the behaviour was inappropriate and sexist, the allegation was not well crafted. In particular, the allegation was that the employee was bullying his colleagues by making sexist comments about other people. The definition of bullying required an employee to have repeatedly behaved unreasonably towards the relevant colleagues, creating a risk to health and safety. Given it was two isolated and separate comments, there was no risk to his colleagues’ health and safety (in fact that they had indicated that they were not offended by the comments), and the comments were about other people, the behaviour did not meet the definition of bullying and the substance of the allegation could not be substantiated.

Had the allegation simply been that the sexist comments were disrespectful towards another employee and member of the public, the allegation could have been upheld.

The newer allegations about the employee being aggressive and rude towards his colleagues were confirmed.

As such, the recommendation to the Agency was that the original decision be varied, setting aside the older allegations, while confirming the newer ones.