Legal Practice Briefing No. 30

Number 30

30 January 1997

THE PRIVATE CONDUCT OF
PUBLIC SERVANTS

On 15 October 1996 the Federal Court handed down a decision1 which recognises that a Commonwealth employer has an interest
in, and an ability to issue directions about, an employee's
conduct outside of the workplace where that conduct has
substantial and adverse effects on the workplace. The decision
has important implications for the ability and, potentially
the obligation of, a Commonwealth employer to give directions
to employees concerning their private activities.

The Implications for Clients

Prior to this decision there existed a widespread view
that the power of a Public Sector employer to take action
against an employee for conduct which occurs outside the
workplace did not include a power to give a direction of
the kind in question.

Additionally, the decision is of significance because
it may increase a Public Sector employer's responsibility
to take action to avoid the recurrence of sexual harassment.
Section106 of the Sex Discrimination Act ('the SDA') provides
that an employer will be vicariously liable for certain
conduct which is unlawful under the SDA unless the employer
can establish that it took all reasonable steps to prevent
the employee from doing acts of that kind. Accordingly,
a Commonwealth employer cannot now safely say that it could
not intervene in a situation where one employee sexually
harasses another employee outside of work hours where the
harassment has substantial and adverse effects on the workplace.

The Facts

The applicant in the Federal Court was an officer employed
in a Commonwealth agency. He commenced proceedings in the
Federal Court seeking to have disciplinary action against
him set aside. The disciplinary action related to the applicant
wilfully disregarding a direction given to him. The direction
was that he refrain from contacting a certain female officer
of the agency within or outside work hours (other than
as required by his official duties).

On a number of occasions the applicant had become interested
in various female employees of the agency and approached
them seeking a relationship. On two occasions (some time
apart 1990 and 1993) he approached one particular officer
and sought to start a relationship with her. This occurred
both within and outside of work hours. The female officer
was upset by his approaches. On the first occasion she
confronted him and on the second occasion she complained
to his supervisor. The applicant was counselled on the
second occasion.

In 1994 the applicant again approached the female officer
by leaving a message on her telephone answering machine
at home. The applicant, in the message, recognised that
he was not supposed to approach the female officer. The
female officer complained to his supervisor. The applicant
was counselled and directed formally not to make contact
with the female officer either within or outside work hours.

Approximately six months later the applicant rang the
female officer at home. Disciplinary action was taken and
he was charged with wilfully disregarding a direction given
to him with which it was his duty as an officer to comply.
The charge was found proven and the applicant sought to
challenge this direction in the Federal Court (rather than
a Disciplinary Appeals Committee). His contention was that
the direction given to him was not a lawful and reasonable
direction because it sought to constrain what he did in
his private capacity. Hence, he argued that he was not
obliged to comply with the direction. His application was
dismissed.

Relevant Legislation

Section 61 of the Public Service Act 1922 ('the
Act') provides that officers may be charged with misconduct
if an authorised officer is of the opinion that they may
have failed to fulfil their duty as an officer. Section
56 of the Act defines the meaning of failure to fulfil
a duty as an officer:

'56.For the purposes of this Subdivision and Subdivisions
B, C and E, an officer shall be taken to have failed to
fulfil his duty as an officer if and only if:

(a) he wilfully disobeys, or wilfully disregards, a
direction given by a person having authority to give
the direction, being a direction with which it is his
duty as an officer to comply;

(b) he is inefficient or incompetent for reasons or
causes within his own control;

(c) he is negligent or careless in the discharge of
his duties;

(d) he engages in improper conduct as an officer;

(e) he engages in improper conduct otherwise than as
an officer, being conduct that affects adversely the
performance of his duties or brings the Service into
disrepute;

(ea) the officer engages in conduct (including patronage,
favouritism or discrimination) in breach of section 33;

(f) he contravenes or fails to comply with:

(i) a provision of this Act, of the regulations or
of a determination in force under subsection 9 (7A)
or section 82D, being a provision that is applicable
to him; or

(ii) the terms and conditions upon which he is employed;
or

(g) he has, whether before or after becoming an officer,
wilfully supplied to an officer or another person acting
on behalf of the Commonwealth incorrect or misleading
information in connexion with his appointment to the
Service.'

Relevantly, paragraph 56(e) is the only paragraph which
deals expressly with conduct otherwise than as an officer.
That paragraph is limited in its operation to situations
where the conduct affects adversely the performance of
the officer's duties or brings the Service into disrepute.

Paragraph 56(a) requires an officer to obey a direction
with which it is his or her duty as an officer to comply.
Public Service Regulation 8A provides:

'8A.An officer shall:

(c) comply with any lawful and reasonable direction
given by a person having authority to give the direction;'

The Applicant's Arguments

The applicant submitted that the direction given to him
in regard to the other officer was not a lawful or reasonable
direction because it was not related to the performance
of his employment duties. He further submitted that, if
action is to be taken in respect of improper conduct outside
work hours, then paragraph 56(e) of the Act provides the
proper basis for such action. As the applicant was not
charged with misconduct pursuant to paragraph 56(e) it
was submitted that the disciplinary action taken in respect
of him was invalid.

The applicant further submitted that the duties enumerated
in section 56 are exhaustive of the 'duties' that can attract
disciplinary consequences under Subdivisions A, B, C and
E of the Act and that the paragraphs are, between themselves,
mutually exclusive. From this, the Court was invited to
conclude that if complaint is to be made of private conduct
it must be made under paragraph 56(e). Accordingly, it
was argued that the power to give directions assumed by
Regulation 8A (and given disciplinary recognition by paragraph
56(a)) does not, in consequence, extend to directions relating
to private conduct.

The Decision of the Federal Court

Finn J was unable to accept either of these arguments.
His Honour noted that the Act and Regulations deal directly
with a number of specific forms of private conduct (for
example, external employment and private disclosure of
official information). Finn J said that these matters may
be the subject of lawful and reasonable direction in a
particular instance. Further, conduct falling within other
paragraphs of section 56 (that is, 56(c) and 56(d)) may
occur as a result of the wilful disregard of a direction
falling within paragraph 56(a). It is permissible for a
public servant to be charged with misconduct pursuant to
paragraph 56(a) notwithstanding that a distinct charge
may be brought under another paragraph.

Finn J did, however, accept that there are limits on
the extent to which the disciplinary regime can reach into
the private lives of officers. In relation to the case
before him, Finn J held that it is lawful for an employer
to give an employee a direction to prevent the repetition
of private sexual harassment of a co-employee where:

  • that harassment can reasonably be said to be a consequence
    of the parties as co-employees (that is, it is employment
    related), and
  • the harassment has had, and continues to have, substantial
    and adverse effects on workplace relations, workplace
    performance and/or the 'efficient, equitable and proper
    conduct' (see section 6 of the Public Service Act) of
    the employer's business because of the proximity of the
    harasser and the harassed person in the workplace.

Finn J considered the permissible scope of employer directions
and noted the formulation of the test by Dixon J in R
v Darling Island Stevedoring and Lighterage Co Ltd; Ex
parte Halliday and Sullivan:

If a command relates to the subject matter of the employment
and involves no illegality, the obligation of the servant
to obey it depends at common law upon its being reasonable.
In other words the lawful commands of an employer which
an employee must obey are those which fall within the
scope of the contract of service and are reasonable.2

Finn J observed that Dixon J's limiting formula may not,
in its focus on 'the subject matter of the employment/the
scope of the contract of service' satisfactorily capture
what properly may be the subject matter of directions to
public servants today. His Honour gave several reasons
for this observation. The first reason was that the obligations
imposed on public servants and the powers given the Crown
as employer do not exist merely for employment-related
purposes. Some are designed to preserve and promote other
public interests (such as the Sex Discrimination Act
1984).

In this regard Finn J noted that legislation, increasingly,
is making the workplace a forum in which human rights are
being accorded some level of protection both from the actions
of employers and from co-workers. As a result, workplace
behaviour and its consequences are being made matters of
legitimate interest or concern to employers and employees
alike, which can necessitate some legitimate level of supervision
of the relationship of employees (if, for no other reason,
than to protect the interests of the employer from adverse
effects that can flow from employee misconduct).

Finn J examined the provisions of the SDA in this context
and concluded that the SDA puts beyond doubt that sexual
harassment of Commonwealth employees by fellow Commonwealth
employees is a subject of legitimate interest to the Commonwealth
in its regulation and management of the employment related
conduct of its employees. His Honour found that subsection
106(2) of the SDA (the section imposing vicarious liability
on an employer unless the employer has taken reasonable
steps to prevent harassment) provides an appropriate legal
foundation for that interest. However, the SDA did not,
of itself, provide justification for the use of binding
employment directions in relation to private conduct. Finn
J held that, whilst the provisions of the SDA make the
employee's conduct of legitimate concern to the employer,
more is required. In this case the evidence was that the
consequences of the harassment were such as to have significant
and adverse effects in the workplace through the impact
of the harassment on workplace relations, the productivity
of other officers, and the effective conduct of the employer's
business.

Further Advice

The Legal Practice's Public Sector Employment Law Network
comprises lawyers who specialise in employment and industrial
law in the Commonwealth context. The Network was formed
to facilitate the provision of a more coordinated and cost-effective
service to our client human resource professionals. For
more information on the material in this Briefing please
contact any of the Network's lawyers.

1 (1996) 140
ALR 625

2 (1938) 60
CLR 601 at 621622

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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