Emailing unsolicited material
The applicant was advised that the employing agency delegate had determined a breach of subsections 13(5), (8) and (11) of thePublic Service Act 1999. A sanction of a reprimand was subsequently imposed.
The applicant sought a review by the Merit Protection Commissioner under Public Service Regulation 5.24(2)(a) of the determination of the breach of the Code of Conduct before the sanction decision was made.
The applicant had sent an email from an agency email address to a number of people external to the agency. The email contained some material on an upcoming religious convention. One email recipient (the email recipient), took exception to an APS agency sending religious material by email, and contacted a relative (the relative) who worked in the same agency as the applicant. The relative spoke to the applicant about the email and then referred the matter to the relevant authority for investigation by the agency. The misuse of IT is treated seriously within this agency.
In the application for review, the applicant said that the delegate who determined the breach (the breach delegate) based the decision on adverse evidence that was not put to the applicant, and which the applicant did not have the opportunity to refute.
The evidence concerned a phone conversation that the breach delegate had with the relative on the same day as the determination report was completed. This was after the applicant had provided a response to the alleged breach.
In the response to the alleged breach, the applicant had said that they would not send such mail to someone they did not know, but that the applicant had known the email recipient when the applicant had lived in the same city a number of years before. The applicant said although there had been no recent contact, at an earlier time the applicant had talked to the email recipient about bible topics.
The determination report stated:
A subsequent conversation on …. with [the relative] established that [the email recipient] does not know [the applicant].
This was consistent with the email record of conversation between the breach delegate and the relative.
The conversation with the relative is also referred to in the report as being among the five pieces of evidence "most relevant to the determination" as to whether or not there was a breach.
In the application for review, the applicant included the text of what they said was an email from the email recipient to a mutual friend which the applicant submitted rebutted the relative's statement. The applicant said the email was not provided to the breach delegate during the review as it was not apparent to the applicant that the claim that the applicant knew the email recipient was ever in doubt.
The same text was provided to the breach delegate when the applicant made a submission on sanction, and in the report to the sanction delegate it is referred to as a mitigating factor. That did not however go to whether or not a breach would have been found if the matter had been considered at that time.
Irrespective of the existence of the email, in the opinion of the Merit Protection Commissioner the breach delegate took into account evidence from the relative that the applicant did not know the email recipient. This evidence was credible, relevant and adverse to the applicant, and was not put to the applicant. That it was given significance in the final decision is evident from the determination report. The fact that the applicant had evidence to the contrary and something to say in response indicated that the evidence should have been provided to the applicant.
As a result of the decision in Walworth v Merit Protection Commissioner & Anor  FMCA 24 (Walworth decision), a review conducted by the Merit Protection Commissioner is unable to "cure" a procedural breach, and that such a breach leaves both the original decision and any review conducted by the Merit Protection Commissioner vulnerable to judicial review. In those circumstances therefore, if the Merit Protection Commissioner believes there is a procedural breach that is material to the case, he or she must in effect refer the matter back to the agency concerned.
In the circumstances, it was the opinion of the Merit Protection Commissioner that the decision that the applicant breached the Code of Conduct failed to accord with the requirements of procedural fairness in a way that was not trivial. As such, for the reasons set out above and acting under Public Service Regulation 5.28, the Merit Protection Commissioner recommended:
- that the decision that the applicant breached subsections 13(5), (8) and (11) of the Public Service Act 1999 be revoked
- that consideration be given to whether the decision should be remade.
In making these recommendations, the Merit Protection Commissioner gave no consideration to, or reached any conclusions about, the merits of the case or any of the evidence. To do so would have been contrary to the Walworth decision. The agency accepted the recommendations of the Merit Protection Commissioner and determined that the decision under review should not be remade and the letter of reprimand would be destroyed.
Lessons learnt: that delegates should ensure that employees under investigation for potential breaches of the Code of Conduct are given the opportunity to comment on the evidence used to reach the determination. Failure to afford procedural fairness will result in the matter being referred back to the agency.
Office of the Merit Protection Commissioner
 Subsection 13(5)—An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.
Subsection 13(8)—An APS employee must use Commonwealth resources in a proper manner.
Subsection 13(11)—An APS employee must at all times at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.