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Approving official travel by private vehicle—has the employee breached the Code of Conduct?

A manager was found to have breached the Code of Conduct for approving an employee’s use of a private vehicle to travel between his home location in a capital city and a regional city 800 kilometres from the capital city. The travel was over an extended period and the employee stayed in the regional city for some weekends.

The manager’s approval of the travel was found to be deficient for two reasons:

  • she approved travelling allowance for the employee that contained errors resulting in an overpayment, and
  • she approved the use of a private motor vehicle (rather than plane travel) in breach of the agency’s travel policy. The two principal concerns were that the employee obtained a financial benefit in the form of motor vehicle allowance and workplace health and safety considerations arising from travelling extended distances by private motor vehicle.

The manager was found to have breached:

  • Section 13(2) Code of Conduct—the requirement to act with care and diligence; and
  • Section 13(5) Code of Conduct—the requirement to comply with any lawful and reasonable direction on the basis that the agency’s travel policy was a formal direction.

The manager’s arguments

The manager argued that she made the decision to approve travel by private vehicle in good faith balancing the interests of the agency with the employee’s personal circumstances, particularly having regard to the length of time the employee was required to be away and the employee’s desire to have access to a car after hours.

MPC assessment of the case

The Merit Protection Commissioner considered that the agency had not made out its case that the manager had approved travelling allowance with errors resulting in an overpayment. The agency did not explain which particular payments were at issue; what assumptions were made in making the finding; and the authority for concluding the employee was not entitled to particular payments. The Merit Protection Commissioner found that, to the extent that the manager approved movement requisitions with some errors, and it was not established that she did so, this was an honest mistake and not misconduct.

The Merit Protection Commissioner also looked at the breach decision-maker’s second finding, and noted that the decision to approve travel by private vehicle required a balancing and weighing of the particular considerations of the travel policy. The Merit Protection Commissioner found that:

  • the fact that a large cash allowance being paid to an employee may warrant audit scrutiny, does not mean the manager approving that allowance has engaged in misconduct.
  • the assumption that air travel was the appropriate travel option was not correct. Requiring the employee to travel each week by air from his home to the regional city and back over an extended period would have been onerous, and could reasonably be viewed as a significant imposition.
  • the conclusion that the employee inappropriately received a financial gain relied on the erroneous assumption that air travel was a more appropriate form of travel.
  • driving on country highways at night for extended hours posed a health and safety risk, but the manager had some regard to health and safety in making her decision, noting that the agency did not provide any guidance as to how managers ought to assess health and safety considerations arising from the use of private motor vehicles.

The Merit Protection Commissioner recommended that the agency set aside the finding that the manager breached the Code of Conduct, and that the sanction be set aside.

Conclusion—in the absence of clear guidance, it can be difficult to establish that a manager approving travel has engaged in misconduct when applying a principles-based policy.

The Merit Protection Commissioner encourages agencies to make principles-based employment decisions. However, where an agency adopts a principles-based policy, breach decision-makers are not able to read into the policy particular rules and requirements. If the agency wants to prescribe particular requirements these should be documented in guidance that sits behind the principles-based policy.

The misconduct action in this case arose from a financial audit and a referral by the agency’s internal fraud team. It highlights the importance of Code of Conduct decision-makers conducting further inquiries and testing assumptions, before relying on the material gathered in a fraud investigation as proving misconduct.