Insufficient evidence to support findings of fact

An IT specialist was found to have breached five elements of the Code of Conduct, including care and diligence and using Commonwealth resources in proper manner and for a proper purpose, for the following behaviours:

• engaging in outside employment through his involvement in online gaming on an agency issued device
• failing to provide a password that would allow forensic investigators to inspect his agency issued laptop and
• using agency IT resources (in particular wifi and laptops) in breach of the reasonable personal use provisions in the agency’s guidelines on the use of equipment.

The MPC recommended the findings of misconduct be set aside for several reasons, including:

• The evidence in support of outside employment was a manager’s recollection of a conversation with the employee which the employee disputed. There was insufficient evidence to conclude that the employee’s gaming represented outside employment.
• The decision was based on assumptions about what the employee was doing for which there was insufficient evidence. For example the employee stayed back after work on a large number of occasions. The employee acknowledged that he was engaging in private activities online including gaming but argued that his activities did not breach the reasonable personal use of wifi provisions in the agency’s IT policies. The agency decision maker assumed that because the employee had no work related reason for being in the workplace his use of the agency’s wifi must have been excessive. The Merit Protection Commissioner was not satisfied there was sufficient evidence to support that conclusion.
• The agency did not have clear guidelines on the specific responsibilities of employees in specialist IT roles, in particular with respect to password maintenance, and relied on general guidelines issued to all staff.

We noted that the employee’s activities might raise other concerns, for example the workplace health and safety implications of an employee remaining after hours on agency premises but these matters were not considered as part of the misconduct investigation.

The agency imposed the sanction of a reassignment of duties. We noted that this option was open to the agency, separately from imposing a sanction under section 15(1) of the Public Service Act 1999.

Section 25 of the Public Service Act gives agencies the general power to reassign duties, meaning that in this case it was open to the agency to remove the employee from a specialist IT role without requiring a finding that the employee had breached the Code of Conduct.