Notification of employment decisions in the Gazette – a discussion paper

22 April 2014

Our reference: 14/000026-02

Karin Fisher
Group Manager Ethics
Australian Public Service Commission
by email: ethics@apsc.gov.au

Dear Ms Fisher

Notification of employment decisions in the Gazette – a discussion paper

Thank you for the opportunity to provide feedback on Notification of employment decisions in the Gazette – a discussion paper (the discussion paper).

The Office of the Australian Information Commissioner (OAIC) supports the proposal presented in the discussion paper that the Australian Public Service Commissioner’s Directions 2013 be amended to remove the requirement to notify the Gazette when an ongoing APS employee is terminated or an SES employee is retired.

We provide the following comments in relation to the specific questions in the discussion paper:

1. Is there any justification for publishing in the APS Gazette termination decisions that show the name of the employee and the reason for termination?

In our view, no. The discussion paper points out that no other Australian jurisdiction requires publication of both the name of the employee and the reason for their termination;[1] a fact indicating that publication is not necessary and that other jurisdictions have found alternatives to publication that achieve the same transparency and oversight objectives.

We believe the justifications for publishing termination decisions are outweighed by the significance of the privacy impact on individuals and the existence of alternatives to publication. The discussion paper states that the purpose of publishing termination decisions is to provide ‘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.’ Publication also plays a role in assuring the public that appropriate action is being taken in Code of Conduct cases and other matters. In our view, these objectives can be achieved in other ways (see response to question 3 below).

Nothing in the discussion paper suggests that another purpose of publication is to punish terminated employees through a ‘name and shame’ mechanism. Certainly this would be inappropriate for employees terminated on grounds of physical or mental incapacity or where the employee was excess to requirements. Yet, ‘shaming’ may be a current unintended consequence of publication. Even for Code of Conduct terminations, the discussion paper notes that ‘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.’

Termination information is likely to be sensitive to individuals. The long term availability of termination decisions in the Gazette online may restrict a person’s ability to move on and adversely affect their reputation long after they have addressed the issue that led to their termination (for example, by obtaining necessary qualifications or recovering from a physical incapacity). In light of the significant privacy impacts, we support removing the requirement to publish termination decisions in the Gazette.

2. Is there any justification for treating particular termination decisions differently than others?

No. As discussed above, we believe that the significance of the privacy impact outweighs the justifications for publishing termination decisions. Our understanding is that publication is not aimed at punishing individuals who have been terminated, but at fostering transparency of process and enabling oversight. These are objectives that can be achieved in other ways (see below).

3. Could the intention of the gazettal requirement be achieved in some other way?

Yes. The discussion paper lists alternatives that would enable oversight without the impact on individual privacy, such as publication of the information in aggregate form or reporting of the information in the State of the Service Report or the APS Statistical Bulletin. In our view, publishing of termination information in a way that does not identify the individuals involved would achieve the desired outcomes.[2] Other Australian jurisdictions may also offer models for the monitoring of employment decisions. In essence, transparency of process can be achieved in a range of ways aside from broad-scale publication.

Yours sincerely

[signed]

John McMillan
Australian Information Commissioner

Timothy Pilgrim
Australian Privacy Commissioner

22 April 2014

Footnotes

[1] As noted in the discussion paper, only Tasmania and the ACT publish the names of employees whose employment has been terminated. Neither jurisdiction publishes the reason for the termination.

[2] The OAIC has developed advice on de-identification of data sets which may be relevant to the activities of the APSC in this regard. See www.oaic.gov.au/information-policy/information-policy-resources/information-policy-agency-resources/information-policy-agency-resource-1-de-identification-of-data-and-information.

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