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What review applicants say about why they seek review of Code of Conduct decisions

Review applicants sought review of determinations that they had breached the Code of Conduct and sanctions for a variety of reasons:

  • They denied they had done what was alleged.
  • They accepted they had done what was alleged but argued it was appropriate and reasonable behaviour and not misconduct.
  • They accepted they had done what was alleged, acknowledged it was inappropriate, but argued it should not have been dealt with as misconduct, including because their behaviour was as a result of mental health issues.
  • They considered there were procedural problems in the decision-making process.
  • They were concerned the sanction imposed on them was too harsh.
  • They were concerned about the impact of a misconduct record on their future employment prospects.

Review applicants were astute in identifying procedural problems. In six cases the review applicant’s main reason for seeking review was a procedural concern. In three cases the procedural concerns identified by the review applicant were sufficient for us to recommend that the decision be set aside. In the remaining three cases the review applicant’s procedural concerns had substance but were not of sufficient seriousness to cause us to recommend that the decision be set aside.

The language and tone of agency decisions and the way the decision-making process is conducted may be a factor in driving employees to seek review. It influences an employee’s sense of the fairness of the decision. In 40% of review applications review applicants identified this as a concern. Examples of the comments made by review applicants are:

  • ‘The process is bullying at a departmental level and this caused me considerable personal and professional distress’. The review applicant referred to the investigation report and the agency decision as ‘repetitive’, ‘threatening’ and ‘punitive’. She stated she was forced to read and respond to several versions of ‘a very lengthy document, with multiple legislative attachments’ for what was a one-off incident. The employee advised that whatever she said in her defence ‘was used against me’.
  • An employee was concerned that a sanction decision maker concluded she had failed to show remorse as a result of arguments she made in her defence. The employee advised that she had ‘not attempted to direct blame to others’ but was disagreeing with the conclusions the decision maker drew from the evidence.
  • An employee stated, ‘I feel as though I haven’t been taken seriously, or my legitimate concerns listened to at all in this process … I am also struggling to understand how intentional misconduct was determined’.
  • An employee stated, ‘I take a lot of pride in my work and have done so for 40 years. To be seen by this department as being “untrustworthy” and hav[ing] a “lack of integrity” has caused me large amounts of distress … I am very embarrassed and have not shared this problem with any of my family, co-workers and only one close friend’.
  • An employee was concerned that when she disputed the conclusions the decision maker had drawn from the facts the decision maker concluded the employee had provided ‘false and misleading information … for expressing an opinion’.

In our view, agencies should critically assess the way they manage their misconduct investigation processes and the way they communicate their decisions. Agency decision makers need to treat the people who are subject to misconduct processes fairly and with appropriate respect and courtesy. In particular, agencies should avoid reasons for decisions that are unnecessarily lengthy and repetitive and that use exaggerated, emotive language when expressing opinions about the employee’s behaviour.