Financial penalty too harsh
The considerations in this case were:
- the nature and seriousness of misconduct
- mental health and provocation as mitigating factors.
An APS 6 employee was found to have breached the Code of Conduct for an aggressive outburst directed at a colleague in a cafe in their office building. The employee was observed to be agitated during the incident, spoke loudly and berated the colleague for being harassing and threatening.
The agency found the employee had breached sections 13(3) and 13(11) of the Public Service Act. A sanction imposed was a $4,000 reduction in salary and a reprimand.
There had been a previous incident a couple of years earlier, when the colleague had been convicted of assaulting the employee. As a result, the colleague was found to have engaged in misconduct and a sanction was imposed. Arrangements were put in place for a period of time to prevent the two employees from interacting with each other.
The agency sanction decision-maker was aware of the earlier incident. However, considered that the employee’s relatively senior position (an APS 6) and length of service meant they should have behaved ‘more maturely’ when running into the colleague in the cafe. The sanction decision maker described the employee’s behaviour as ‘reprehensible’.
The Merit Protection Commissioner considered that the decision-maker’s arguments, language and judgement about the employee overstated the seriousness of the incident. In our view, the incident was minor and caused some concern to bystanders and embarrassment both to employees. The Merit Protection Commissioner considered it an exaggeration to describe the behaviour as ‘reprehensible’.
The Merit Protection Commissioner considered that the decision-maker did not give appropriate consideration either to the employee’s mental state or to provocation as significant mitigating factors in this case.
The Merit Protection Commissioner considered the evidence about the assault. The Merit Protection Commissioner noted individuals respond to stressful experiences with varying degrees of resilience. After the sanction decisions had been made the agency received medical information that the employee had been suffering from un-diagnosed and untreated Post-traumatic Stress Disorder. This was significant new evidence relevant to mitigation.
The Merit Protection Commissioner considered that, even without this diagnosis, the employee’s distress and confusion was obvious from their behaviour during the investigation.
The employee claimed they were provoked by the colleague’s aggressive behaviour before the incident in the cafe. The agency decision-maker made no findings about this other than to state it was no excuse for the behaviour.
There was dispute about what occurred immediately prior to the incident in the cafe. The Merit Protection Commissioner preferred the employee’s account for a number of reasons. The colleague’s evidence to the investigator indicated that they were still angry and resentful about the consequences to their career resulting from the assault. Also, their evidence about the incident in the car park, and on other occasions, was directly contradicted by the evidence of independent witnesses.
The Merit Protection Commissioner concluded it was more likely than not that the colleague behaved aggressively to the employee before entering the cafe and that, given the employee’s psychological vulnerabilities, provoked an agitated, fearful and panicked response. The Merit Protection Commissioner considered the earlier assault, the employee’s mental state and the colleague’s behaviour immediately before the incident were significant mitigating factors. The employee’s long and unblemished work history was also a mitigating factor.
The Merit Protection Commissioner considered that, in light of the medical evidence, it was regrettable the agency initiated a conduct investigation. However, the review was unable to address that question. The Merit Protection Commissioner recommended the sanction decision be varied to a sanction no more severe than a reprimand. The agency accepted the recommendation.