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Investigation failed to establish facts or resolve conflicts in evidence—bullying and harassment

An Executive Level 2 employee was found to have breached the Code of Conduct for behaving disrespectfully to a colleague during a meeting. The agency's breach decision-maker found that the employee had deliberately made disparaging remarks about non-ongoing staff (the complainant was a non ongoing staff member), interrupted the complainant and deliberately mispronounced the complainant's name.

The sanction delegate imposed both a fine and a reprimand. The employee denied the misconduct and sought to have both the findings of breach and the sanction set aside.

The Merit Protection Commissioner found there was conflicting evidence about what the employee actually said during the meeting and neither the investigator nor the breach decision-maker clarified which version they thought was correct. It could only be established that the employee expressed an opinion about whether it was appropriate for non-ongoing staff to manage high profile projects. The Merit Protection Commissioner considered that there was insufficient evidence to conclude that a reasonable person would consider the employee's comment disparaging.

The employee was also found to have interrupted the complainant during the meeting. While there was evidence of a robust discussion, in the Merit Protection Commissioner's view, the evidence did not establish that the employee's behaviour exceeded the boundaries of acceptable professional behaviour.

The Merit Protection Commissioner also found the allegation that the employee had deliberately mispronounced the complainant's name was unsubstantiated. The agency investigation failed to establish an important detail of fact—exactly how it was alleged that the employee had mispronounced the name. In addition the employee presented expert evidence that he had a speech impediment affecting his capacity to pronounce certain sounds.

The Merit Protection Commissioner concluded that the allegations against the employee were either not proven on the evidence or alternatively were proven, but the behaviours did not amount to misconduct. The Merit Protection Commissioner recommended that the agency set aside both the finding of misconduct and the sanction. The agency accepted the recommendation.