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Code of Conduct case — when is behaviour harassing rather than a lack of respect and courtesy only? Is provocation relevant?

An employee was found to have breached the Code of Conduct for making an inappropriate remark to a colleague in an open plan area about a male colleague. The remark the employee made was along the lines that her male colleague was chauvinist and had no respect for women. The remark was overheard by another person in the work area.

The agency found the employee had breached the Code of Conduct, in particular, sections 13(3), (5) and (11) of the Public Service Act 1999 (the Act). The agency determined that her remarks amounted to harassment of the male colleague. The agency determined that, as its workplace bullying and harassment policy had been issued as a mandatory instruction and the employee had failed to comply with it, her actions also constituted a failure to follow a lawful and reasonable direction. The agency also found that the employee had failed to uphold the APS Values, namely the Respectful Value. The agency imposed a sanction of a reprimand.

The employee applied for review on the basis that she had not, by her actions, breached the Code of Conduct.  She contended that she was having a private conversation, the conversation could not have been overheard and the comments she made were true—she had made complaints about her male colleague’s behaviour and management had not followed up on them. The employee also contended that an investigation was out of proportion to the incident and the matter should have been handled at the local level.

The Merit Protection Commissioner found that, while the employee’s remarks were neither respectful nor courteous, they did not amount to harassment. The employee made a one-off comment. It was not directed to the male colleague nor was it made in his presence. Although the comment was overheard by a third person, and the male colleague subsequently became aware of it, the comment was not of a degree that constituted harassment.

The Merit Protection Commissioner also found the agency’s workplace bullying and harassment policy did not contain a direction to treat everyone with respect and courtesy in connection with APS employment. Nor was it necessary that the policy do so. The requirement to treat everyone with respect and courtesy is contained in the Code of Conduct in the Public Service Act and is a statutory requirement.

The Merit Protection Commissioner recommended that the agency vary its decision and find breaches of sections 13(3) and (11) of the Code of Conduct only.

The Merit Protection Commissioner made no findings about the agency’s decision to investigate the employee for suspected misconduct as this decision is outside the scope of the review.

In relation to sanction, the Merit Protection Commissioner considered whether the employee was provoked into making her comment by the male colleague’s behaviour. The agency informed the Merit Protection Commissioner that it held no records of investigations into the male colleague for making inappropriate comments about women and no complaints had been made other than those raised by the employee. The Merit Protection Commissioner considered that even if there was substance to the employee’s allegations she did not have licence to make disparaging comments to co-workers.  If the comment had been was made to someone in authority in the agency as part of a sincere strategy to have reasonable concerns addressed then the matter might have been different.  But this was not the case here. The Merit Protection Commissioner confirmed the sanction of a reprimand.

The agency accepted the Merit Protection Commissioner’s recommendations.