The Commission notes that in 2013 the Parliamentary Joint Committee on Human Rights queried the requirement to notify those decisions in the Gazette, with particular regard to the right to privacy under article 17 of the International Covenant on Civil and Political Rights. The Committee also noted questions in relation to the Convention on the Rights of Persons with Disabilities in instances where termination is due to physical or mental incapacity.
The Commission indicates that it is considering whether employment decisions should continue to be publicly notified in the Gazette and, if so, to what level of detail.
Gazetting employment decisions provides assurance about the transparency of the APS and promotes confidence in the integrity of its administration. At the same time, however, an employee whose employment has been terminated has the right to privacy and to the protection of their reputation.The discussion paper notes that
Public confidence in public administration is crucial to the effective working of government, and often depends on the proper balance of competing interests. Public confidence in the APS relies on a transparent, accountable public service—but also on due regard being had to the privacy of individuals and to the effective management of the APS. In this context, the Commission is reviewing the Service-wide practice of notification in the Gazette of employment decisions; in particular, of terminations of employment including the employee’s name and the reason for the termination. Gazetting employment decisions provides assurance about the transparency of the APS and promotes confidence in the integrity of its administration. At the same time, however, an employee whose employment has been terminated has the right to privacy and to the protection of their reputation.The paper goes on to briefly discuss "the relationships between sometimes competing public and private interests, namely: the private interests of APS employees; in particular, their right to privacy and the protection of their reputation, the public interest in the protection of individuals’ privacy, and the interest of the public in its right to know how public resources are being managed".
Publication in the Gazette reflects clause 2.29 of the Australian Public Service Commissioner’s Directions 2013, which requires the gazettal of certain employment decisions. The paper comments that the requirement to gazette certain employment decisions has been a feature of Public Service legislation for many years, with for example the Public Service Act 1922 (Cth) s 92 providing that "notice of every appointment, promotion, retirement or dismissal of officers" "shall be published in the Gazette". The Public Service Act 1999 (Cth) moved the public notification requirement to the regulations, of which Regulation 3.12 dealt with the requirement for public notification of 'certain employment decisions, including engagements, movements, assignments of duties, promotions, and terminations as well as retirements of SES employees' under s. 37 of the new Act.
That Regulation was amended in December 2000 to include a specific requirement that the gazettal of termination decisions include the grounds for termination in order to assist the Public Service & Merit Protection Commission in monitoring and reporting on the types of separations from the APS. Last year the requirement to notify employment decisions was moved to the Commissioner’s Directions, albeit the Commissioner was authorised to agree to an agency withholding the name of an employee in a Gazette notice in certain work-related or personal circumstances. "Employee-initiated decisions such as resignation and retirements" are not gazetted .
The paper notes that only Tasmania and the ACT have a requirement to notify termination decisions in the equivalent of the Gazette. Tasmanian gazettal of all employment decisions, including termination, is taken as ‘conclusive evidence’ of the actions taken on the basis of these decisions. The Tasmanian notice must include the name, department, and date of effect, but not the reason for the termination of employment. In the ACT retirements and dismissals are notified together, without differentiation, in a single section of the Gazette.
It is argued that public notification of APS employment decisions "reinforces the openness, transparency and accountability of the APS", enabling
the community to hold the public service to account that such decisions are based on the principle that the APS is staffed on merit and provides an easily accessible public record of when engagement and promotion decisions take effect. This public recordkeeping also facilitates the efficient management of the APS, including the process for employees to apply for review of promotion decisions. The routine notification of such decisions impacts on the privacy of the employees but because this type of information is commonly disclosed as part of normal social interaction and because of the strong public interest grounds the practice is arguably justified. Should a public servant’s personal situation be such that it outweighs the public interest of disclosure, the Commissioner’s Directions allow for a name to be withheld on application to the Commissioner.The paper goes on to comment that the rationale for publishing termination decisions (inc the name of the employee and the grounds for termination) is not as strong as that for continuing to notify engagement and promotion decisions. The grounds for termination are -
- the employee is excess to the requirements of the Agency;
- the employee lacks, or has lost, an essential qualification for performing his or her duties;
- non-performance, or unsatisfactory performance, of duties;
- inability to perform duties because of physical or mental incapacity;
- failure to satisfactorily complete an entry-level training course;
- failure to meet a condition imposed under subsection 22(6);
- breach of the APS Code of Conduct;
- any other ground prescribed by the regulations
The Commission asks three questions -
- Is there any justification for publishing in the APS Gazette termination decisions that show the name of the employee and the reason for termination? Are the goals of transparency and accountability sufficient to justify the intrusion on privacy entailed by gazettal? Is it necessary, in the interests of transparency and accountability, to include the employee’s name and the reason for the termination?
- Is there any justification for treating particular termination decisions differently than others? Are there some types of terminations for which the justification for continuing to publish names and reasons for termination is stronger, for example when employment is terminated as a result of underperformance or a breach of the Code of Conduct, or where a monetary benefit has been received? Is it necessary, in the interests of transparency and accountability, to include the employee’s name when publishing these types of termination decisions? If decisions about other types of terminations of employment are not gazetted, is it reasonable to gazette a smaller subset of decisions?
- Could the intention of the gazettal requirement be achieved in some other way? Might it be sufficient, for example, to report in the Commissioner’s annual State of the Service report, or the APS Statistical Bulletin, on overall numbers of terminations of employment across the APS? Reasons for termination could be presented in aggregate form.
Publishing names and the reasons for termination as a matter of routine in the Gazette assists the APS by providing an accessible and reasonably up to date public record of termination decisions which can be used to monitor these matters Service-wide and inform management decisions. The data supplements (and is occasionally used to reconcile) data published in the Australian Public Service Statistical Bulletin. The Bulletin publishes on an annual basis the numbers of separations from the APS and includes comprehensive information on separations including by type of separation, agency, classification, length of service, age group and sex.Publication thus offsets bureaucratic incapacity, i.e. agencies not providing data direct to the Commission. (One response might be that the effort involved in getting data into the Gazette could just as easily be invested in sending data to a Commission email address. The Commission argues that
publication of names and reasons for termination can assure the public that appropriate action is being taken in cases where the good management of the Service is compromised, such as in Code of Conduct and underperformance cases, particularly for senior employees whose decisions and actions may have a significant impact on the community.
Publication of the names of employees who receive a monetary benefit because they are ‘excess to requirements’ can also reinforce the openness, transparency and accountability of the APS.In referring to privacy it notes that
When the requirement to publish termination decisions was introduced in 1902, personal information became protected by its ‘practical obscurity’ once archived, meaning that thereafter it could only be tracked down in a library or archive by a motivated researcher. Today, termination information published online in the Gazette is available years after the fact, and is discoverable via a search engine. This raises a new set of privacy challenges that may call for a different procedure. … [I]t may be useful to have regard to what a reasonable employee would expect in the circumstances.
Most employees would regard publication of information that would indicate that they are incapable of fulfilling their duties because of a physical or mental incapacity an unacceptable intrusion into their privacy. Many employees are also likely to consider that the publication of information indicating that they lack, or have lost, an essential qualification, failed to complete an entry-level training course, failed to meet a condition of their engagement (specified in subsection 22(6) of the Act), or are ‘excess to requirements’ as equally unacceptable.
In relation to termination of employment for a breach of the Code of Conduct and non-performance or underperformance of duties, employees may consider that the penalty of termination of employment is sufficient punishment and that public release of such information is an additional and unwarranted punishment.
On this basis, it is reasonable to consider removing the requirement to gazette termination decisions. The interests of transparency may be served in a different way; for example, by publishing information about termination of employment in aggregate form in the State of the Service report or the Bulletin.
While agencies provide the Commissioner with data on the reasons for termination, this has not been published to date in the Bulletin but could be — for example, in a way that does not identify individuals. Aggregate data on termination of employment for breaches of the Code of Conduct is routinely published in the State of the Service Report. Publication of aggregated data showing the reasons for termination in these circumstances may be sufficient to maintain public confidence in the APS and avoids naming individuals.