Improper use of position to gain advantage not established

The Agency determined that these allegations were substantiated. The employee applied to the Merit Protection Commissioner for review because he rejected that he sent that information to himself for his private gain. 

The delegate of the MPC recommended that the Agency set aside the determination regarding the employee’s alleged improper use of his position. In particular, the delegate recommended that there was insufficient information and evidence to support on the balance of probabilities that the employee had sent the information to himself to achieve, or seek to achieve, a gain, benefit, or advantage. The delegate considered that an allegation that an employee is using insider information to seek to achieve a personal benefit is a serious one which incorporates notions of dishonesty and deception. Therefore, in line with the Briginshaw principle, better information and evidence is required to support it. Here, the Agency’s finding was based on suspicion and indirect inferences, which was insufficient. This was particularly so in circumstances when the employee had presented a plausible (albeit inappropriate) explanation for sending the information to himself which the Agency did not investigate or otherwise engage with.

The delegate of the MPC recommended however that another aspect of the determination be confirmed. Namely, the employee had acted contrary to the Agency’s ICT policies and procedures by sending multiple emails containing work-related information marked ‘OFFICIAL: Sensitive’ to his personal email address without seeking advice or authorisation, or having a legitimate purpose to do so (for example, a legitimate personal administrative or work-related purpose). The delegate was satisfied that this amounted to a breach of the Code of Conduct, namely s 13(8), as it constituted a failure to use the Agency’s ICT resources in a proper manner and/or for a proper purpose.