Apply an objective test

An employee was found to have breached two elements of the Code of Conduct (respect and courtesy and upholding the APS Values) for a comment made to a colleague during a conversation. The employee received sanctions of a reprimand and a small fine.

It was evident from the investigation material that there was a history of conflict between the two employees which the employee’s managers had been managing, including through alternative dispute resolution.

The finding of misconduct arose from a discussion between the employee and their colleague about a workplace matter. The employee was confused by what the colleague said and made a comment about the colleague’s state of mind. The colleague subsequently complained that they found the comment offensive. Their complaint was expressed in very strong terms and indicated that they had reflected on, and interpreted, what the employee had said.

The agency decision maker considered that the employee had engaged in misconduct for ‘causing offence’ to the colleague. The Merit Protection Commissioner concluded the evidence of what the employee had actually said was unclear. Nevertheless, even if the employee had said what was stated in the complaint, the words attributed to them could not reasonably be viewed as offensive or justify such a strongly worded complaint.

The Merit Protection Commissioner recommended that the finding of misconduct be set aside, noting that the test for establishing whether an employee has breached the Code of Conduct is an objective one. In this case, the agency decision maker appeared to have applied a subjective test by accepting the colleague’s characterisation of the employee’s behaviour without making an assessment of whether a fair minded, independent observer would view the employee’s behaviour in this way.