A procedurally unfair misconduct investigation

An agency received a complaint that a manager had bullied a coworker and behaved in a way that affected the coworker's health and safety.

The agency conducted a misconduct investigation, and determined the employee had breached the Code of Conduct, including the requirement, at section 13(3), to act with respect and courtesy, and without harassment. 

The employee sought review by the MPC as they strongly denied the allegations, and considered they had been treated unfairly during the investigation process. The employee raised concern that the investigation was biased and lacked objectivity.

On review, we considered the employee's concerns about bias, and considered whether the agency's investigation and decision-making process was procedurally fair.

Misconduct investigations in the APS and Parliamentary Service must be procedurally fair, and must comply with the agency's procedures for handling misconduct investigations. These procedures have minimum standards of procedural fairness, including:

• the employee must be informed of the allegations against them
• the employee must be given a reasonable opportunity to respond to the allegations
• the person making the decision must be independent and unbiased.

In our view, the agency's investigation and decision-making process was unfair, and did not meet these minimum standards.

We considered the decision-maker appeared to have already made up their mind that the employee had engaged in the alleged behaviour, before hearing from the employee to get their side of the story. The decision-maker sent the employee a preliminary view letter, which invited the employee to respond to which sections of the Code of Conduct applied to their behaviour, but did not invite the employee to discuss whether or not they had engaged in the conduct complained of. In our view, this did not indicate the decision-maker had an open mind, and raised concerns about apprehended bias. We also had concern that the employee did not get a fair opportunity to respond to the allegations, as the allegations were vague and lacked sufficient detail for the employee to fairly respond. 

We recommended that the agency set aside the decision that the employee had breached the Code of Conduct, as the employee did not get a fair hearing, and because a reasonable person might reasonably apprehend that the decision-maker might not have brought an impartial mind to the decision. The agency accepted this recommendation.