No sanction for disclosure of information to third party
The considerations in this case were:
- the nature and seriousness of misconduct
- whether the misconduct was uncharacteristic
- the employee’s response to misconduct and likelihood of recurrence.
An APS employee revealed the names of two clients to another Commonwealth agency as part of an application for workers’ compensation. The application explained the circumstances that led to a workplace injury. When this was brought to their attention, the employee said they thought they was permitted to include client names when communicating with another Commonwealth agency.
The agency found the employee had breached sections 13(2) and 13(11) of the Public Service Act and a sanction of a reprimand was imposed.
The Merit Protection Commissioner noted the agency decision maker found that the employee had no prior history of previously using or accessing client information in an appropriate manner. The decision maker also noted that the employee was genuinely remorseful.
In the Merit Protection Commissioner’s view, the employee’s mental state was a significant mitigating factor. They had made an honest mistake in releasing the information at a time when they were recovering from a workplace injury.
The Merit Protection Commissioner acknowledged the importance placed by the agency on its obligations to protect client information. However, there was no evidence of harm to the clients, or to the agency’s reputation, arising from the employee’s actions. The Merit Protection Commissioner considered that, in this case, it would have been preferable for the agency to have dealt with the disclosure with a warning rather than conduct action, noting that the decision to deal with the misconduct finding was not under review.
The Merit Protection Commissioner considered that employee had demonstrated by their response to the misconduct investigation that they now fully understood the obligations and the course of action to take in the future. On this basis, there was little likelihood the conduct would be repeated.
The Merit Protection Commissioner considered a reprimand was not necessary and recommended that no sanction be imposed. The agency accepted the recommendation.