Fail to give a fair hearing

An employee was found to have breached two elements of the Code of Conduct (respect and courtesy and upholding the APS Values) for his behaviour towards a colleague during a work meeting.

The agency engaged an investigator who interviewed witnesses and prepared an investigation report with findings and recommendations. Because of privacy concerns about the witness evidence, the agency decided to provide the employee with an appendix to the report which outlined the evidence with respect to the incident but not the full report. In doing so the agency withheld information in the investigation report including the opinions of witnesses and the investigator about the employee’s general behaviour and witness evidence about the employee’s previous behaviour towards the colleague. The agency considered this information was not relevant to the specific facts that needed to be determined, namely the employee’s behaviour during the incident.

The Merit Protection Commissioner considered that some of the information withheld from the employee was adverse information relevant to the finding of misconduct. The information indicated the employee had a tendency to behave in the way alleged in the incident. The Merit Protection Commissioner concluded that the employee should have been given an opportunity to comment on this information, or a reasonable summary of it, prior to the decision being made.

The Merit Protection Commissioner considered that the agency’s failure to give the employee a hearing about this information represented a substantive breach of the requirements of procedural fairness and recommended that the Code of Conduct breach determination be set aside on the basis of a serious procedural defect.