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Taking into account circumstantial evidence to decide that bullying and harassment has occurred

An employee sought review by the Merit Protection Commissioner of an agency decision that his manager had not engaged in bullying and harassing behaviour but in reasonable management action.

The employee had worked for the APS for one year in a training role and commenced a permanent placement. Within one month of obtaining permanent employment, the employee had been placed on a performance improvement plan and the manager had requested that the employee's use of the internet be audited. The employee received detailed emails from the manager advising the employee about their tasks and providing a summary of what the employee had thought were informal discussions about work tasks. The employee also complained about the manager's threatening language and intimidating mannerisms.

The employee sought primary review by his agency. The reviewer determined that the actions taken by his manager were reasonable management actions but recommended that a number of informal actions be taken to address some issues with the manager's management style. In conducting the review, the review officer declined to consider circumstantial evidence provided by a harassment contact officer of eight similar complaints about this manager's behaviour over the preceding year, as well as evidence from two employees who had previously been supervised by the manager and experienced similar behaviour. The primary reviewer interviewed three independent witnesses, only one of whom corroborated the employee's account of his manager's behaviour.

The Merit Protection Commissioner took account of the circumstantial evidence from the harassment contact officer and the two employees who had previously been supervised by the manager and noted that this significantly increased the probability that the employee's complaints had substance. The Merit Protection Commissioner noted that:

… the circumstantial evidence in this case was considerable and, even when afforded less weight evidentially, it significantly increased the probability that the actions described by [the review applicant] had in fact occurred. This is attributed to the amount of evidence provided by [the harassment contact officer] and the evidence obtained from [the two employees] all of which featured a striking similarity to [the review applicant's] complaint.

The Merit Protection Commissioner recommended that the agency's review decision be set aside and that a number of actions be taken to address the manager's behaviour. The Merit Protection Commissioner also recommended that reference to the performance improvement plan be removed from the employee's personnel file.