Public Service duplicity and hypocrisy-

 

COA Comment: Agencies can fabricate grounds to successfully force employees out of their job, even if the Agency’s actions are proved to be harsh, unjust or unreasonable.

 

 The following extract has a few important issues relevant to all Public Servants.

1. Agencies can take harsh, unjust or unreasonable action against an employee by claiming that there was a ‘break down of trust’ between the employee and the employer.
2. The agency managers who impose that harsh, unjust or unreasonable action are never –repeat never- charged by the Public Service Commission or sanctioned by the relevant Minister.
3. Even if the Industrial Relations Commission (IRC) finds that the employer acted improperly – the maximum compensation that the employee can claim is 6 months pay and the Agency can still refuse to reinstate the employee.
4. Though the notes quoted below highlight the need for agencies to comply with their own policies and procedures, there is little evidence that the AAT or the IRC or the lower courts take note of agency or Public Service directions, policies or procedures. I am aware of circumstances where the AGS has argued that Agencies are not bound by policies or procedures or even directions of the Government Cabinet or the Attorney General’s office.
5. What is fairly repugnant is that the writer recommends that even if an Agency has harshly, unjustly or unreasonably dismissed an employee they should ‘consider’ applying the ‘break down of trust’ excuse. There is no suggestion that the Agency remedy their harsh, unjust or unreasonable action – no - what is suggested that Agencies should ‘consider applying’ that line of argument. The ironic thing is that the Commonwealth’s Litigation Policy requires;

“The obligation requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency by:

 

(d)     endeavouring to avoid litigation, wherever possible.

 

(i)      apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.

 

AGS: Litigation Notes Number 12 29 June 2005 (Virginia Masters AGS )

http://www.ags.gov.au/publications/agspubs/legalpubs/litigationnotes/LitNote12.htm

 

Conclusion

The significance of the Walsh decisions for APS agencies is that they confirm that even a large agency can resist a reinstatement order when the Commission has determined that the termination of an employee’s employment was harsh, unjust or unreasonable, if there is sufficient evidence that the relationship of trust has broken down. In preparing for arbitration of unfair dismissal cases, agencies should ensure that they consider applying this line of argument.

The decision is also a salutary reminder of the importance of APS agencies complying with their own policies and procedures.

Text of the Full Bench decision is available at: <http://www.airc.gov.au/decisionssigned/html/PR956205.htm>.

Virginia Masters acts for and advises a range of government clients in relation to employment-related disputes including workers’ compensation claims, disciplinary proceedings, discrimination complaints and unfair dismissal applications