Submission to the Ethics Advisory Committee: Disclosing outcomes of misconduct complaintst

SUBMISSION

 

 

To:             The Ethics Advisory Service Australian Public Service Commission

 

From:             Ms Michaela Banerji, former employee of the Department of Immigration and Citizenship

 

Subject:            Discussion paper: Disclosing outcomes of misconduct complaints

 

Date:            6 October 2014

 

 

 

  1. The commission cited a recent case where the Immigration Department was found to have hidden behind “classic Yes Minister speak” over a complaint about the conduct of one of its executives.

 

  1. The commissioner cited the case of dissident Immigration official Michaela Banerji and her complaints against the department’s former high-profile spokesman Sandi Logan.

 

  1. In a judgment on Ms Banerji’s court action to obtain an injunction to prevent her dismissal, Federal Court Judge Warwick Neville found the complainant being told simply that “appropriate action” had been taken was both “less than informative” and “classic Yes Minister speak”.

 

  1. I am that person Michaela Banerji and I make the following submissions for your consideration.

 

  1. The “classic Yes Minister speak” is a symptom of a much greater problem in the APS. The problem is a psychological one.

 

  1. To state the problem briefly, the APS has a “dog in the manger” [i] psyche that permeates the whole service, destroying it from the inside.

 

  1. Outwardly, the “dog in the manger” psyche is demonstrated in government policy such as policy on asylum seekers that includes mandatory detention.

 

  1. Inwardly, the “dog in the manger” psyche is demonstrated in workplace relations, by its culture of envy.

 

  1. Any employee who reveals that she is not of the same mind or world view, is soon targeted to be destroyed, using all the means available such as bullying, harassing, avoiding, isolating, demeaning, discriminating, performance managing, rejecting, ignoring, criticizing, to name a few.

 

  1. This is what happened to me. From the start of my permanent employment with the department in 2006, I suffered the brunt of being targeted as a person who is not of the same mind or world view, and described as not being a “DIAC player”.

 

  1. As a beginning employee I was very pleased to see the department’s workplace relations policy. It sounded so good, so fair, so anti-discriminatory, but in time I was to find that the department’s human resources sections were not designed to help the employee, but to protect the employer. In retrospect, it is not surprising because of course, the psyche in the workplace relations sections is also of the “dog in the manger” style.

 

  1. During the course of my employment, I was constantly attacked, accused, complained about, moved and refused promotion to mention a few, because of the very person that I am: hardworking, independent, committed, educated, ethical, moral and believing in the important role of the public service. In a supreme irony, I was found to be in breach of the Code of Conduct for not upholding the APS values, when in fact, I had always been a staunch supporter of the APS Values as I saw them written up on our websites.

 

  1. Not being of the same mindset , my critical failing was to not recognise the ‘viciousness’ of the people I was working with, who in their “dog in the manger” style envied anyone who was not of the same mind set. I was cast as the person to be envied and then destroyed by a million cuts, because, psychologically speaking, the result of envy, is that the person who envies, seeks to destroy the one envied.

 

  1. Sandi Logan, manager of the National Communications Branch, conducted a protracted campaign against me, to have me constructed as incompetent so that he could have me removed from the branch after I had been returned there by the workplace relations section. It was personal. I was the oldest person in the branch, and I was of independent mind. I was engaged in enterprise bargaining and had accompanied many staff in their meetings with supervisors. I had worked in his section in the previous year as speechwriter for the branch. I even wrote a speech for him to address a conference, a speech that he described as ‘good’. I never understood his animosity towards me, and can only conclude that it was my personality – a personality that constantly came up against the dominant psyche of the department, the dog in the manger psyche in all things and one which I could not but reject.

 

  1. When finally, I could not stand Sandi Logan’s humiliating and hurtful actions any more, I lodged a complaint with Comcare, and with the Workplace Relations people. I had no response from the workplace relations people about my complaint, but four days later, Sandi Logan complained about my use of Twitter, my own private account, demanding my sacking, accusing me of being a threat to the integrity of the department. By the time that I was being formally investigated, I still had had no response to my complaint about Sandi Logan. This confirmed to me that workplace relations people were discriminating against me in the way that it was handling the two complaints.

 

  1. Naturally, the Workplace Relations people, being of the same mind set, vehemently rejected my view that his complaint was a retaliatory one, designed to further his wish to have me sacked. His minute of complaint clearly showed his malice, but the Workplace Relations people took his side and went along with his view of me, a view that was based entirely on an unwillingness to be aligned with the dominant view of the department, to not act as a “dog in the manger”.

 

  1. My complaint to Comcare revealed the same “dog in the manger” mindset, accepting denials from the managers, without giving me an opportunity to show their material falsity, deciding that yes, I had suffered injury, but it was do to “reasonable administrative action”. It explained to me the reason that Sandi Logan was instructing his directors to construct me as incompetent and then avoid liability to Comcare and to me, by saying that it was all ‘reasonable administrative action”.

 

  1. Naturally, the inevitable result was that I was sacked, because the dog in the manger psyche exists not only in the entire department, but it exists in Comcare and other public institutions, including the APSC.

 

  1. It is evident by the events that took place, that even the APSC was not prepared to assist me, in fact, its on-line participation guidelines providing the trip-wires that they still are for any public servant who wishes to criticize government policy, as a private citizen, under the Constitutionally Implied Freedom of Political Communication.

 

  1. The department’s decision to find me in breach of the Code of Conduct for expressing views about its responsibilities under the Refugee Convention, was wrong, but there was no right of review except through the courts.

 

  1. Even there, the judge did not have the courage to make a call on the constitutional freedom, saying that it was for a “higher court” to decide, ignoring submissions that I made, wrongly stating that I had sought an unfettered freedom, when in fact I had made submissions, on his own invitation, that while legislation may fetter that freedom, as may the Public Service Act , the fetter must be reasonable, adapted and to a legitimate end”, and that in my submissions, it was neither reasonable, adapted nor to a legitimate end to preclude public servants from expressing political opinion as private citizens, as defined in the case law[ii].

 

  1. So, you see, the same psychological template exists in all our public institutions.

 

  1. To conclude: You invite comments on the following questions, and I will briefly respond to them.

 

  1. To your question “What information should be provided to people, including members of the public, who allege breaches of the APS Code of Conduct about the outcome of their complaints?” my response is that legally, all public servants activities are to be publicly available on request to anyone who asks at all times. This legal requirement already exists, but I only discovered it recently, and cannot at this moment provide the reference. I am sure that not many people are aware of this.

 

  1. The FOI regime is as much imbued with the same psyche, as are all the review bodies such as the Ombudsman, the OIPC, and the AAT, the FOI regime in the department hiding behind language to avoid providing people with the information they request.

 

  1. To your question “Should information about proven misconduct be disclosed to people other than complainants, such as the wider agency workforce?” This is best answered by restating the question to “If information about proven misconduct is disclosed to people other than complainants, such as the wider agency workforce, then what would be its effect?”

 

  1. In my case, the decision of “proven misconduct” for breach of Code of Conduct for my comments on Twitter, was an unlawful “dog in the manger” act of envy and revenge by Sandi Logan and the department, even while contrary to the Constitutionally Implied Freedom of Political Communication, and therefore invalid. That error was published in the Gazette and I am unable to do anything about those defamatory actions due to the risk of costs association with legal action. Failing in Comcare injury claim means that I am unable even to cover costs of treatment.

 

  1. Furthermore, while I was sacked and my sacking was publicy notified in the Gazette, no one knows the outcome of my complaint about Sandi Logan. What is indisputable is that he did not suffer the consequences of his breach of the APS Code of Conduct as I did. The department discriminated against me, to my detriment, by the way that it differentiated the way that it dealt with Sandi Logan (benignly) and the way that it dealt with me (viciously and unlawfully sacking me).

 

  1. To your question “If information should be disclosed to people other than the complainant, under what circumstances?” I say, refer to the “If-then” comment above.

 

  1. To your question “What do agencies need to consider in making decisions about these matters?” I submit the following:

 

  1. There needs to be a confronting of the APSC culture with a view to restoring it to good health. Public Servants are unique and essential instruments in our country. They are suffering psychologically from a persistent devaluing of their roles. It has been assisted by the removal of permanent heads of department, to heads of department being offered five-year contracts. The Public service has thus, been politicized to its detriment and to Australia’s detriment. This detriment has been internalized. It reveals itself as a self-hatred by employees, which is then projected onto other co-workers, creating the “dog in the manger and envy” psyche that pervades the public service. When people are bent on destroying others, either their fellow workers, or the people they serve, they will not be transparent about their actions and intentions. Instead they will devise countless strategies to avoid responsibility for their behaviour.

 

 

FOOTNOTES

[i] The story and metaphor of “The Dog in the Manger” derives from an old Greek fable which has been transmitted in several different versions. Interpreted variously over the centuries, the metaphor is now used to speak of those who spitefully prevent others from having something that they themselves have no use for. http://en.wikipedia.org/wiki/The_Dog_in_the_Manger

 

[ii] ABC v Lenah Game Meats 2001 HCA, per Kirby J

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About lalegale

Legal and psychological advocate for freedom of political communication.
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