Legal Practice Briefing
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 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.
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.
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.
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