Lawful and reasonable direction

An employee and a colleague engaged in a trail of email communications about a matter within the workplace. The colleague objected to the inappropriate assertions made in and tone of the employee’s correspondence. The employee continued to use disrespectful and discourteous language in their subsequent correspondence to their colleague.

The manager became aware of the emails and issued a direction to the employee that the employee immediately cease the email communication with the colleague. The next day the employee saw the colleague in the workplace and spoke to the colleague using disrespectful and discourteous words.

The employee was investigated under the Agency’s Code of Conduct procedures.  The employee was found to be in breach of a number of sections of the APS Code of Conduct including s 13(5) which provides that an ‘_APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction._’

The employee sought primary review of the breach decision by the Merit Protection Commissioner (the MPC). The MPC recommended that the breach of s 13(5) of the Code of Conduct be set aside.

The basis of the Agency’s breach determination was that the employee had spoken to their colleague the day after receiving the direction, and therefore failed to comply with the direction. The delegate of the MPC observed however that the direction was wholly based on and related to the employee’s inappropriate email communications to the colleague, not communications generally.

The Australian Public Service Commission’s publication, Handling Misconduct sets out that an agency may wish to direct an employee to do, or to refrain from doing, a specific thing and that directions must be lawful, reasonable and issued by a person with the authority to do so.

A reasonable direction is likely to be clear, specific and capable of being followed and it should be drafted in the language of command and impose a clear and specific obligation. A poorly worded direction can make it difficult both for the employee to follow and for the agency to establish whether the employee has complied with it. Clarity of a direction requires it to be tightly drafted, using the language of command throughout. The direction must specify exactly what actions should and should not be taken, and be clear in its terms and capable of being complied with.

In this case the MPC found that the direction did not require the employee to cease all communications with the colleague and did not prohibit verbal communications. The MPC was of the view that if the manager had intended to prohibit all communications including verbal communications from the employee to the colleague then the manager needed to have used tighter language in the direction, to make it clear to the employee that they were directed to not speak to the colleague.

This case demonstrates that, when drafting a direction, it is critical that managers consider exactly what behaviour they wish to address in issuing a direction. The language used in the direction must leave no doubt as to what is expected of the employee in terms of their behaviour. It must be clearly articulated and is not ambiguous. To assist agencies the MPC has published a Tip Sheet on drafting clear employee directions.