Issuing directions and warnings to employees
We reviewed six cases in which employees disputed directions or warnings issued to them by managers in their agency. In half these cases we recommended that the direction or warning be withdrawn.
- A warning was issued by HR to a manager who had made a formal complaint under the Public Interest Disclosure scheme about the behaviour of employees in his team. An assessment was made that the manager had not used the management options available to him to address the behaviour of his team. The warning reminded the employee of his obligations, including with respect to the Code of Conduct. In our opinion the warning was potentially damaging to the employee’s reputation, the employee was not given a fair hearing and the preliminary inquiry into his disclosure raised no concerns about his behaviour.
- A manager issued a direction to an employee in response to incidents in which the employee elected to work from home without the prior approval of his manager. We concluded the direction was poorly drafted and implied that the employee had been found to have breached the Code of Conduct. It admonished the employee for previous behaviour but failed to set out the manager’s expectations for future behaviour.
- A manager issued to an employee a warning setting out the agency’s expectations in relation to the way the employee serviced clients. The status of the document was unclear, including whether it was a direction or a set of expectations, and it was variously referred to as both. We considered that the letter was disproportionate to the end it was seeking to achieve—namely, to advise the employee what was expected of her—and was not reasonable.
In three other cases we upheld agency decisions to issue directions or warnings. These concerned a direction to return to work following an independent medical examination in a case where there were differences in medical opinions; a warning to an employee to improve her performance and behaviour in specified ways; and a direction from an agency head to an employee to cease agitating on a workplace issue.
The Merit Protection Commissioner noted that directions need to be tightly drafted and in the language of command, specifying what actions should and should not be taken. Where directions seek to remove flexibility available under an agency policy, they need to be unequivocal that their intention is to create a new legal obligation.
For example, a direction about attendance should:
- set out the relevant provisions in the enterprise agreement and agency policies
- set out the employee’s obligations under the agreement and policies
- direct the employee to comply with those obligations plus any specific requirements—for example, in relation to communication with managers
- specify that the written direction is a direction for the purpose of the Public Service Act 1999
- draw the employee’s attention to the possible consequences of non-compliance with the direction.