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Complaints were made about an employee’s behaviour in the workplace. The agency responded with a bullying and harassment investigation rather than a misconduct inquiry. The investigation was undertaken under the agency’s policy for responding to complaints of bullying and harassment.

The agency advised the employee that the investigation process was informal and on review, in response to the employee’s concerns, advised that the process did not have strict procedural fairness requirements.

The investigation resulted in adverse findings about the employee’s behaviour. These findings resulted in the employee being issued with a direction with respect to their future behaviour and the denial of performance-based salary advancement.

The Merit Protection Commissioner concluded that the way the investigation was conducted (including terms of reference, interviewing witnesses and taking statements, and developing a report with recommendations) meant the process was a structured and formal workplace investigation, not an informal tool to assist management decision making.

The Merit Protection Commissioner found the investigation process and final decision were procedurally flawed, including for the following reasons:

  • The employee was told specific processes relating to the investigation would be followed and they were not
  • The investigator did not supply the employee with a copy of the investigation report with findings or an opportunity to comment before giving the report to the decision maker
  • The decision maker did not inform the employee of their proposed decision, or the evidence to support the decision, before issuing the behavioural instruction.

The Merit Protection Commissioner recommended the decision be set aside and a fresh investigation be conducted by people with no connection to the matter.

Consistent with the APS Employment Principles, employees are entitled to have fair decisions made. Processes in the workplace that have an investigatory character are workplace investigations. An employee should be notified of the process to be undertaken, and that process should be followed. Employees are entitled to procedural fairness in workplace investigations and, consistent with the hearing rule, should be given an opportunity to rebut any evidence, statement or proposed finding that is adverse or prejudicial to them, before these findings are presented to the decision maker.