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Reduction in classification for bullying behaviour

The considerations in this case were:

  • the nature and seriousness of misconduct
  • whether the misconduct was uncharacteristic
  • the employee’s response to misconduct and likelihood of recurrence
  • the employee’s health, the work environment and lack of leadership in the workplace as mitigating factors.

Mr K was found to have engaged in a pattern of behaviour over an extended period towards team members and colleagues that was aggressive, antagonist and intimidating. The specific behaviours included arguing with staff, shouting and swearing, invading colleagues’ personal space, copying staff and colleagues into emails in which he was critical of others, and ignoring people by leaving them out of emails.

The agency determined that Mr K had breached sections 13 (3) and (11) of the APS Code of Conduct and imposed a sanction of a reduction in classification from an Executive Level 2 to an Executive Level 1.

The Merit Protection Commissioner had regard to the statements of numerous witnesses to Mr K’s behaviour, including senior managers, members of Mr K’s team and contractors when assessing its seriousness. The Merit Protection Commissioner found the first-hand accounts of witnesses to be compelling and genuine statements of distress. The cumulative effect of observing, or being at the receiving end of, the bullying behaviour over time led to a breakdown of trust to the point where some staff were not prepared to work with Mr K under any circumstance. Mr K’s behaviour also impacted on the welfare of employees, particularly two team members. The length of time over which the behaviour occurred and the number of staff affected also pointed to the seriousness of the breach.

The Merit Protection Commissioner viewed the behaviour as characteristic, taking into account the period over which it occurred. Further, there was evidence from emails that some of Mr K’s behaviour was deliberate, indicating intent.

Mr K provided character witnesses who were supportive of his abilities, good character and behaviour. The Merit Protection Commissioner balanced these positive and general statements about Mr K’s character and behaviour against the significant distress he had caused to other staff. The Merit Protection Commissioner concluded the character witness statements were not of sufficient weight to change the balance of evidence with respect to the appropriate sanction.

Mr K submitted that his behaviour was a result of mental illness caused by workplace stress. Mr K provided medical evidence that he was suffering from what his doctor described as mild anxiety and depression. Mr K’s medical evidence did not support a conclusion that his bullying behaviour was an uncharacteristic response caused by mental illness.

The Merit Protection Commissioner considered the busy environment in which Mr K worked, his relatively short time in the Executive Level 2 role as well as lack of leadership from senior managers. The Merit Protection Commissioner concluded that the challenging environment, lack of leadership and lack of experience did not excuse behaviour as destructive as targeted bullying.

Finally, given that Mr K showed little insight into the distress his behaviour had caused his colleagues, the Merit Protection Commissioner considered there was a risk of recurrence.

The Merit Protection Commissioner recommended that the agency’s sanction be upheld.