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An employee was found to have breached the Code of Conduct for repeatedly approaching another employee and making comments to the effect that he loved her. The recipient reported to her supervisor that the employee’s comments made her uncomfortable and his approaches distracted her from her work.

The employee was represented by a family member in the review proceedings. Medical evidence indicated the employee had an acquired brain injury and autism spectrum disorder, and that these conditions made it difficult for him to understand when his behaviour may be considered inappropriate in the workplace.

The representative submitted that the employee had meant no harm by his comments and that he was just trying to have a conversation with a colleague who he considered to be a friend in the workplace. The employee argued that the breach determinations were unfair in light of the medical evidence available to the agency, which outlined his condition and concluded that the recent difficulties with his behaviour were due to changes in the workplace, including with respect to management arrangements for the employee.

The requirement in the Code of Conduct to treat everyone with respect and courtesy was not meant to create rigid rules in the workplace, but rather recognise that people with different backgrounds, interests and personal values need to get along with each other in the workplace.

The Merit Protection Commissioner was satisfied that, by making the statements outlined, the employee did not intend any disrespect to his colleague, whom he considered a workmate and a friend. The medical evidence was clear that the employee’s medical conditions of an acquired brain injury and autism spectrum disorder made it difficult for him to understand when his behaviours or actions may be considered inappropriate. However, the Code of Conduct provides a single standard of conduct for all employees. By repeatedly making statements to his colleague which made her feel uncomfortable and frustrated, since he distracted her from her work, the employee did not act in a polite manner and did not show excellence of manners. The Merit Protection Commissioner was satisfied that the employee did not treat his colleague with respect and courtesy, and therefore breached the Code of Conduct.

The Merit Protection Commissioner made some observations about the operation of the Code of Conduct where the employee may have mental or physical incapacity. The Australian Public Service Commission publication Handling Misconduct: a human resources manager’s guide, notes that, ‘In some cases, unacceptable behaviour may appear to be the result of an underlying medical condition. In such cases, agencies are advised to consider seeking medical opinion to establish whether there is a causal link between the behaviour and the employee’s health.’ The publication goes on to note that, where health issues are identified, an alternative to misconduct action could be the putting in place of appropriate management actions to address health issues. The Merit Protection Commissioner considered that this was a case where such alternative action could have been taken. The Merit Protection Commissioner recommended that no sanction be imposed for the misconduct.