Public Service Informant: An APS workplace wish list for 2021

The late December-early January shutdown is often a good time for deep thinking: reflections on the year that has been and contemplation about what 2021 might bring. To that end, we wanted to use our final column for the year to present an Australian Public Service employment law Christmas wish list, in the hope that it might stimulate thinking over the break.

Imagine that, while you are at the beach this summer, you bump into a former colleague who now works in a different agency. The late afternoon sun is shining, you have had a beer or two with lunch - perhaps, in a moment of indiscretion, you comment to this ex-colleague that you are dissatisfied with the senior leadership in your department. For rhetorical flourish, you might even add in an expletive or two.

Complaining about our bosses is a tradition as old as employment itself. Although perhaps unwarranted or ill-advised, it is a fundamentally human habit - who among us has not vented to our friends or partners from time to time about the vicissitudes of work. But what happens if the ex-colleague, following the beachside encounter, complains to the agency head about your conduct?

We have long rallied against overreach into the private lives of public servants. In that regard 2020 brought some positive news: new guidance from the Australian Public Service Commission adopted a more sensible approach to the political engagement of APS employees than prior guidelines.

But private lives entail more than just political speech. A number of provisions in the APS Code of Conduct seek to apply "at all times". In some disciplinary cases, the APS has sought to argue that this has a literal meaning: 24 hours a day, 365 days a year. In other cases, the APS has conceded that is an irrational construction: in its submissions to the High Court in Banerji, for example, the government said "at all times" does not mean "always and under any circumstances".

In 2021, we hope that the APSC's softening attitude towards political speech also translates into a more sensible APS-wide approach to out of hours conduct. Sure, there are some circumstances where private conduct rightly should fall within the Code of Conduct - the case of Cooper, where a public servant was convicted of child sex offences and (unsuccessfully) argued the Code did not apply, is an apt example. But pursuing Code proceedings against public servants for out-of-hours griping about their bosses is plainly absurd, not to mention a waste of taxpayer funds.

As far-fetched as our beachside hypothetical might sound, in 2020 we were involved in a number of not dissimilar cases. Absent compelling reasons to the contrary, the private conduct of public servants should not be the subject of disciplinary investigations.

For any public servant (including our beachgoer), receiving a letter indicating that they are the subject of a Code of Conduct investigation can be extremely distressing. If you believe you are innocent of what is alleged, you might take heart in the fact that your agency is bound to provide you with natural justice and procedural fairness during the investigation. Surely a fair investigation will show that the allegations are indeed unfounded?

Unfortunately, natural justice and procedural fairness are somewhat amorphous concepts. In our experience, different facets are often overlooked during APS Code of Conduct investigations.

Most fundamentally, these concepts require that the allegations be put to the accused. As a High Court judge recently quipped, "even with the benefit of omniscience, God still afforded Adam the benefit of the natural justice hearing rule". But there are allegations and then there are allegations. Too often we see investigations proceed with overly broad and insufficiently particularised allegations.

We also sometimes see a catch-all approach adopted: agencies will plead that certain conduct constitutes a breach of multiple Code of Conduct provisions, some specific (say the rule against conflict of interest) and some broad (public servants must "at all times" uphold the APS's "integrity and good reputation"). This is contrary to the rule against duplicity, and proper statutory interpretation. On other occasions, agencies will modify allegations midway through an investigation and provide insufficient time for the accused to respond.

None of this is to say that public servants don't sometimes misconduct themselves. Among a cohort of several hundred thousand, there are bound to be a few bad apples. The High Court has said "what is required by procedural fairness is a fair hearing, not a fair outcome". But unfortunately, sometimes we see that the fairness in APS investigations goes missing. In such circumstances, agencies and their investigators must do better.

In March, just as COVID-19 was transforming into a pandemic, Australia's Sex Discrimination Commissioner Kate Jenkins published a landmark report, Respect@Work. Across almost a thousand pages, the report highlighted how widespread sexual harassment was in Australian workplaces and found that the current preventative systems and structures are broken. It contained dozens of recommendations, some of which the government has begun to implement via new funding in the budget.

The public service is not immune from sexual harassment. Nor is it immune from the prevalence of bullying, discrimination and other non-inclusive behaviour. While all workplaces need to do more to drive positive change, as Ms Jenkins' report so amply demonstrated, the APS has a special role. Government departments can and should lead by example when it comes to preventing inappropriate behaviour and fostering respectful environments. As a starting point, all APS managers should take the time to read the executive summary of Respect@Work, and discuss its findings with their staff.

On that note, we want to wish our readers a safe and relaxing festive period. Thanks for reading throughout 2020 and we will be back in 2021.