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Lawful and reasonable directions

In two misconduct cases the Merit Protection Commissioner found, contrary to the findings of the agency, that employees had not failed to comply with directions issued by their managers. In both cases there were problems with the way the directions were expressed.

In the first case, an employee with a history of accruing large amounts of flex leave was issued with a direction about her hours of attendance. The direction stated that the employee must discuss her workload with her team leader if it required her to work more than 8 hours 30 minutes per day so that her workload could be monitored.

The Merit Protection Commissioner noted that the intent of the direction was to direct the employee not to work more than 8 hours 30 minutes a day without first discussing this with her team leader. The team leader wanted to limit the amount of flextime the employee accumulated when her workload did not require her to work additional hours.

The Merit Protection Commissioner observed that the wording of the direction did not clearly and unambiguously convey this intent. Instead it suggested that the employee was required to have a discussion with her team leader about working additional hours only when her workload required additional hours. The direction did not make it clear that the employee was required to also have a discussion where the employee had a personal preference for working longer hours. On this basis, the Merit Protection Commissioner concluded that the employee had not breached the direction by continuing to accrue flextime credits without first discussing her attendance with her team leader.

In the second case, an employee had made allegations of victimisation and bullying arising from incidents that were investigated in 2011 and found to be unsubstantiated. In 2012, following the investigation, a manager in the agency issued the employee with a direction to "refrain from continuing to make these allegations in the future". In 2013, the employee was found to have breached the direction for making unsubstantiated allegations relating to a different set of incidents.

The Merit Protection Commissioner considered that the 2012 direction was not a general direction to refrain from making allegations of victimisation and bullying in unspecified future circumstances. The Merit Protection Commissioner noted that such a direction would be neither practical nor appropriate and could seek to stifle the legitimate right of an APS employee to seek investigation or review of new matters affecting his or her employment.

Agencies may consult Appendix 5 of the Handling Misconduct publication for an explanation of what is required in drafting a lawful, reasonable and thus enforceable direction.