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Meaning of ‘respect’ and ‘courtesy’—has the employee breached the Code of Conduct?

A long-term APS1 employee of the agency, who had commenced work under the provisions of a disability employment program, was found to have breached:

  • Section 13(3) Code of Conduct—the requirement treat everyone with respect and courtesy;
  • Section 13(5) Code of Conduct—the requirement to comply with any lawful and reasonable direction; and
  • Section 13(11) Code of Conduct—the requirement to uphold: APS Values; APS Employment Principles; and the integrity and good reputation of the Agency and the APS.

for making inappropriate statements to a colleague, and for seeking additional work from a colleague rather than through his nominated supervisor.

The review was conducted on the breach decision as a sanction decision had not been made.

The case against the employee

The breach decision maker found that the employee had repeatedly approached another employee, making comments to the effect that he loved her. The recipient reported to her supervisor that the employee’s comments made her uncomfortable and his approaches distracted her from her work. There was no suggestion that the employee had attempted any unwelcome physical contact with this colleague.

The breach decision maker also found that the employee had sought work from another staff member who is not a supervisor, in contravention of a lawful and reasonable direction given to him.

The employee’s arguments

The employee was represented by a family member in the review proceedings. Medical evidence indicated the employee had an acquired brain injury and autism spectrum disorder, and that these conditions made it difficult for him to understand when his behaviour may be considered inappropriate in the workplace.

The representative submitted that the employee had meant no harm by his comments and that he was just trying to have a conversation with a colleague who he considered to be a friend in the workplace. The employee argued that the breach determinations were unfair in light of the medical evidence available to the agency, which outlined his condition and concluded that the recent difficulties with his behaviour were due to changes in the workplace, including with respect to management arrangements for the employee.

MPC assessment of the case

The Merit Protection Commissioner found that there was no reason to doubt the statements were made by the employee to his colleague. In the context of section 13(3) of the Code of Conduct ‘respect’ and ‘courtesy’, carried their ordinary dictionary meanings. The requirement is not meant to create rigid rules in the workplace, but rather recognise that people with different backgrounds, interests and personal values need to get along with each other in the workplace.

The Merit Protection Commissioner was satisfied that, by making the statements outlined, the employee did not intend any disrespect to his colleague, whom he considered a workmate and a friend. The medical evidence was clear that the employee’s medical conditions of an acquired brain injury and autism spectrum disorder made it difficult for him to understand when his behaviours or actions may be considered inappropriate. However, the Code of Conduct provides a single standard of conduct for all employees. By repeatedly making statements to his colleague which made her feel uncomfortable and frustrated, since he distracted her from her work, the employee did not act in a polite manner and did not show excellence of manners. The Merit Protection Commissioner was satisfied that the employee did not treat his colleague with respect and courtesy, and therefore breached section 13(3) of the Public Service Act 1999.

In considering the direction issued to the employee, the Merit Protection Commissioner noted that a direction must be tightly drafted, using the language of command. The direction issued to the employee was framed as a request and did not contain a direction for the employee to seek additional work only from his nominated supervisor. Accordingly, the Merit Protection Commissioner was not satisfied that the employee breached the Code of Conduct requirement to follow lawful and reasonable directions, and recommended that these findings be set aside.

In this case, the Merit Protection Commissioner made some observations about the operation of the Code of Conduct where the employee may have mental or physical incapacity. The Australian Public Service Commission publication Handling Misconduct: a human resources manager’s guide, notes that, “In some cases, unacceptable behaviour may appear to be the result of an underlying medical condition. In such cases, agencies are advised to consider seeking medical opinion to establish whether there is a causal link between the behaviour and the employee’s health.” The publication goes on to note that, where health issues are identified, an alternative to misconduct action could be the putting in place of appropriate management actions to address health issues. The Merit Protection Commissioner considered that this was a case where such alternative action could have been taken.

Conclusion—the Code of Conduct provides for a single standard of conduct, however, the employee’s medical condition should be taken into account when deciding to take misconduct action.