A proportionate and appropriate sanction decision

Secondary employment

The agency had a policy that allowed secondary employment in certain circumstances. In this case, it was alleged the employee was engaging in employment that had a conflict of interest as it was in a related field to their professional work in the agency.

In response to concerns raised by others, the agency conducted audits of its email and records systems. The audit report revealed the employee had sent and received more than 2,000 emails using their work computer and network to conduct the secondary employment. The report also revealed the employer had used the agency’s printing and other resources. The employee had undertaken this work during paid work hours, and while on paid sick leave, despite an abundance of available agency work to complete.

The matter was investigated and the employee was found to have

• acted without integrity
• failed to take reasonable steps to avoid a conflict of interest
• used commonwealth resources for an improper purpose
• failed to uphold the values
• acted in way that had the potential to damage the good reputation of the agency.

The employee were found to have breached sections 13(1), 13(7), 13(8) and 13(11) of the Code of Conduct.

A proportionate sanction decision

When determining what action to take the agency considered all the relevant information and accepted a submission from the employee. The employee stating that a financial penalty should not be imposed, claiming their conduct only warranted a reprimand because they:

• had a strong work ethic and
• operated as a high performer in the office.

In response to this information, the sanction decision maker check in with the employer’s manager. The manager advised that there were concerns with the employers performance and had raised concerns directly with them about the quality of their work. An example was when the employee had declined to complete agency work and instead used their paid working time to complete tasks for their secondary, outside, employment.

The sanction decision maker decided the employee’s claims of a strong work ethic lacked credibility and imposed the following sanction due to the serious of the behaviour, the employee’s lack of judgement and professionalism.

• a reprimand and
• 5% reduction in gross salary for 12 months.

The employee applied to us for direct review on the basis the sanction was unduly harsh and unjustified.

Our review

Our review confirmed the agency’s sanction decision. We did not agree with the employee’s submission. In our view we accepted the employee had personally gained financial benefit and the agency had occurred loss through the lost productivity.

We took into account the manager’s statement that there was a large workload, which did not support the employee’s view that they had paid ‘spare time’ to conduct their private business. We also considered the employee’s excessive use of the agency’s resources for private gain to be a misuse of public funds. We noted the considerable length of time the employee had engaged in this conduct. In our view, this characteristic increased the seriousness of the behaviour.

We did accept the employee’s submissions that they had learned from the experience and that they had apologised. We accepted the likelihood of recurrence was low.

In light of the sustained and serious nature of the conduct, and that the employee had profited from the behaviour, we considered a financial penalty was appropriate. We considered the financial sanction imposed (5% reduction in salary for 12 months) was proportionate to the seriousness of the behaviour.