Sanction decision for unprofessional behaviour towards colleagues and clients

The considerations in this case were:

• the nature and seriousness of misconduct
• whether the misconduct was uncharacteristic
• the employee’s response to misconduct and likelihood of recurrence
• the employee’s health and workplace culture as mitigating factors.

The employee was an APS 6 in a service delivery agency. They were found to have made offensive and discriminatory comments on a chat function about colleagues, including those who identify as transgender; former departmental employees; and members of the public with disabilities.

The agency found the employee had breached sections 13(1), (3), (8) and (11) of the Public Service Act 1999. The agency imposed a sanction of reduction in classification from APS 6 to APS 4 level and a reprimand.

The Merit Protection Commissioner considered that the behaviour was serious, involving extreme discourtesy and disrespect to clients and other members of the public, and colleagues, and managers. The extent of the misuse of internal communications’ systems was significant and the misconduct occurred over a period of more than six months.

The employee was in a supervisory role and expected to exercise good judgement and set an example to colleagues and junior staff.

The employee had been with the APS for several years, with an unblemished career. They provided several references from family and colleagues attesting to a generally good work ethic and behaviour, including demonstrating empathy to clients. There was also evidence of workplace awards.

The employee submitted that past trauma and difficulties had contributed to mental ill health. They indicated having sought professional psychological support to develop coping strategies with the aim of ensuring they did not engage in ‘inappropriate debriefing’ in the workplace in the future.

The Merit Protection Commissioner considered that an employee of this experience should be well aware of what was acceptable behaviour in the workplace.

On the other hand, there was evidence to indicate that the behaviour, at least overtly, towards clients and colleagues was usually of a high standard.

The employer made full admissions and indicated remorse for their actions. They were clearly deeply embarrassed by their conduct and submitted that there was no reason to expect that such behaviour would occur again.

The Merit Protection Commissioner considered there was evidence that the employee had reflected on their actions and considered that this positive response to the misconduct was a strong mitigating factor.

The principal argument against the sanction decision was that the behaviour was a direct result of mental ill-health and was a subconscious coping mechanism. The employee told the agency that the statements made were not things that they believed and that their actions were a way of coping with the things that had happened in their own life.

The Merit Protection Commissioner considered the employee’s submission together with medical evidence and other evidence from family, indicated that the misconduct may have enabled the employee to cope better with stress and maintain otherwise respectful relationships. It also supported the employee’s argument about having no insight into the behaviour over the relevant period.

The Merit Protection Commissioner concluded that the nature of the misconduct was serious. The employee held a position of trust and the agency should have been able to have a high level of confidence in their ability to deal professionally with clients, as well as colleagues and other members of the public.

In other circumstances, the conduct may have reasonably led to a conclusion that termination of employment was warranted. The agency delegate reported giving serious consideration to this sanction.

Taking into account the mitigating factors, including a good service record, remorse, the low likelihood of the misconduct recurring, and the medical evidence, the Merit Protection Commissioner agreed with the agency that a less severe sanction was warranted.

The Merit Protection Commissioner recommended that the sanction decision be upheld.