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Procedural fairness flaws

An Executive Level 2 employee was found to have failed to treat members of her team with respect and courtesy and therefore to have breached the Code of Conduct. The agency engaged a consultant to conduct the investigation and to be the decision-maker.

The Merit Protection Commissioner found on review that the process followed in reaching the decision had substantial procedural defects. The decision-maker failed to provide the employee with a fair hearing and failed to make a decision based on evidence that logically proved the case against the employee.

The allegations related to bullying and harassment alleged to have occurred over a two year period. The allegations were first presented to the employee in detail in an interview she attended with the consultant. The employee then received a copy of the consultant's draft report which included his preliminary view that she had breached the Code of Conduct. The report was 61 pages in length and contained 22 attachments including records of interviews with witnesses. The employee was given eight days to respond to this material.

The Merit Protection Commissioner was concerned that the way the allegations were presented to the employee unfairly affected her capacity to respond—in breach of the hearing rule of procedural fairness. There were three significant concerns.

The first concern was the failure to present a coherent set of allegations containing sufficient details of the dates, times and places that alleged incidents had occurred. The allegations against the employee consisted of a detailed and unstructured list of alleged facts, assertions and the opinions of complainants and witnesses. The consultant made little attempt to group the allegations in a way that could be meaningfully responded to and failed to establish basic factual issues such as the dates and times that incidents allegedly occurred. As a consequence, when responding to the allegations, the employee had to try and piece together what it was that she was alleged to have done.

The second issue was the piecemeal and confusing way in which the employee was provided with witness statements and evidence.

The third issues was the consultant's decision was one-sided. It made no reference to evidence the employee had provided in her defence and the consultant appeared to have disregarded it.

The Merit Protection Commissioner also found that the investigation and decision-making process was inconsistent with the evidence rule of procedural fairness, in particular, the failure to make clear findings of fact and identify evidence that supported those findings. For example, in addition to the problems identified above, the consultant asked broad questions when interviewing witnesses that elicited their opinions but failed to establish factual details.

For these reasons, the Merit Protection Commissioner recommended the finding of a breach of the Code of Conduct be set aside as a result of a substantial procedural defect. The Merit Protection Commissioner also noted that many of the allegations concerned the employee's 'management style' and were not allegations of misconduct. The agency accepted the recommendation and advised that they would address the issues about the employee's management style through less formal management interventions.