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The New South Wales National Parks and Wildlife Service (NPWS) is the government agency responsible for developing and maintaining the parks and reserve system, and conserving natural and cultural heritage, in the State of New South Wales, Australia.
The NPWS falls within the portfolio of the NSW Minister for the Environment, The Honourable Bob (Robert) Debus MP. The Director-General of the NPWS, Brian Gilligan, is responsible to the Minister. (Extract from NPWS website, 2001). The Minister for the Environment is also the Attorney General for the State of New South Wales. The NPWS has a budget of approximately $250 million per annum (Hansard - 17 October 2001)
The following is a summary of my whistleblowing experience with the NPWS. It is a striking illustration of management abuse of unaccountable power in the New South Wales government, and of a weak and ineffective union movement that appears powerless to stop the victimisation and harassment of their members. In this instance I had little choice but to speak out about wrongdoing. I was being forced to sign off fraudulent petty cash dockets and purchase orders written by staff for dubious purchases. In addition annual entry permits (in excess of five hundred) to NSW National Parks went missing across the District I worked in. The whereabouts of these permits were never investigated by the agency. I did however, notice permits missing from gate collectors reconciliation sheets. On one occasion I wrote to a collector about a permit not accounted for. NPWS management was made aware of this. They were also aware that collectors often did not arrive for duty until sometime after they had signed their arrival time on their timesheet. Park entry fees, which were not in accordance with the fees set by the Minister, were on occasion charged to visitors to the National Park. No audit mechanism to account for revenue for park entry fees existed when gate collectors alternated between issuing automatic ticket to manual tickets for park entry.
Many employers often do not want to be told what is wrong with their operations. Frequently they greet the bad news by trying to silence the messenger - to avoid any bad publicity, cost overruns, liability, or simply to prolong the benefits of the misconduct. In the case of many government agencies, they do not have staff with the expertise or capability to assume management positions. Often promotion is based on a culture of cronyism and patronage rather than merit principles the Government espouses. Too often managers who carry out reprisals subsequently receive promotions or bonuses rather than disciplinary action. Sometimes these managers engage the services of consultants to perform the work that they as salaried officers are paid to do but are not competent enough to do. Naturally, these consultants are paid for with public money, otherwise said to be a scarce resource.
Employers in bureaucracies to silence dissenting employees use various tactics and strategies. These tactics of Neutralising Dissent: The Tactics of Cover Up and Targeting Dissenters: The Tactics of Retaliation are described in detail by the Government Accountability Project (GAP) in the United States of America. The official web site of the GAP may be found at http://www.whistleblower.org/ The author wishes to acknowledge the kind permission by the GAP to reproduce excerpts from their publication The Whistleblower's Survival Guide: Courage Without Martyrdom.
My association with the NPWS commenced with my employment on 14 July 1997 and continued until the end of December 2000. This entire period of three and a half years caused untold devastation and destruction to my personal life and effectively stymied my career. It involved harassment, victimisation, bullying and mobbing. It serves as a warning to those who dare to speak out about public sector malfeasance and malpractice. A summary of my story is outlined below.
When I came to the Service I held an undergraduate degree in Business Administration with double majors in Industrial Relations/Personnel Management and a sub major in Law. I had worked in the public sector, mainly in the Attorney Generals Department, for almost twenty years. The position description portrayed my new job in glowing terms with challenging and responsible administrative, financial and human resource duties. The interview process included questions which were irrelevant and duties which I was to later find out were not undertaken by the incumbent. I was informed by another clerk that the purpose of this was to exclude one particular applicant whom the convenor did not wish to be selected for the position.
This was an exception to common practice with public sector recruitment. Many selection interviews are held as a mere formality to the placement of an already chosen candidate acting in a position. Positions are advertised as "vacant" and the person acting in the "vacant position" (usually for a period of 3-6 months until they obtain a feel for the position) is chosen. Bias in appointments in a bureaucracy wastes both the time and resources of other applicants for the vacant position.
I commenced duty in the Attorney Generals Department in 1981 as a school leaver. I had responsible duties in court registries involving placing offenders on recognisances, signing warrants for the apprehension of the same and bail applications. I was commissioned as a Justice of the Peace for the State of New South Wales at age 18. Twenty years of experience later with a six year undergraduate and post-graduate qualifications to my credit, I found myself occupying a position with junior level duties in the NPWS. This position was a promotion in terms of public sector grading. The previous occupant informed me that the Service undertook no evaluation of the job when it regraded certain targeted positions. The New South Wales government subsidised my tertiary education, which was undertaken part-time with study leave and partial payment of tuition fees. I would assume the government would have anticipated receiving a return on the investment made by them on my education.
The job vacancy was in fact little more than a receptionist/booking clerk entry-level position of taking 100 camping bookings per night, wildlife and lost property enquiries and message taking of incoming telephone calls (sometimes up to 150 per day), as staff did not have direct telephone extensions. Neither the job description nor the position advertisement reflected these duties. Misrepresentation in employment is a breach of section 53B of the Trade Practices Act 1974.
In the entire time I worked at that location Area Manager position was vacant. I believe the reason it was not advertised was so the NPWS could save money in not paying a wage for the incumbent.
In January 1998 I walked out of the office due to the offensive way I was being spoken to by several of the staff and some members of District management. Snide comments such as "are you still here" were made to me if I left work at 4.30pm after my contract hours. I had been told that the previous incumbent worked long hours (10-12 per day) and I was expected to do the same. She had resigned from the NPWS, as she could no longer cope with the workload and the treatment by certain members of District management. I have sighted her resignation and offensive e-mails sent to her, copies of which are in the possession of my industrial union. I was absent on stress leave for one week. I had received an e-mail from the District office, which read, "dont bother applying for payment of overtime. We dont have any money." The office (which was little more than a fibro shed with a tin roof situated along a isolated dirt road in a works depot) did not have a cleaner. Cobwebs and thick dirt and dust were over the furniture and in the office equipment such as photocopiers and facsimile machines. My attempts to retain the services of a cleaner were met with resistance on the basis of no funds and being a waste of money. Used and bloodied womens sanitary napkins were in a kitchen tidy bin with no lid in view of any person walking past. I believe they had been there for some time. It became apparent to me that NPWS management was aware the workplace was "toxic" before my recruitment, yet no action had been taken to remedy the working environment.
The workload in the workplace was extraordinary (especially in the busy summer months) and I found myself unable to take a toilet break or an uninterrupted lunch. After several months I contacted my industrial union, the Public Service Association (PSA). Our representations to management regarding basic hygiene matters, excessive workload and non-payment of award entitlements were unsuccessful in obtaining remedial action. As a result the PSA filed proceedings in the NSW Industrial Relations Commission in Sydney. Matter No:1503/98 Re: Misrepresentation of Employment and other matters was listed before Commissioner Macleay on 3 April 1998. The following extracts are taken from the official court transcript:
PSA: We feel as a result of the member approaching the association that she has become the target of a lot of attention from local management and, certainly, in my belief, she has been victimised in the workplace Ms Does complaint at the time was that her position had been misrepresented . There was a concern that a recent restructure and deletion of the only support position will exacerbate this volume of work; the fact that management had stated that she (Jane) was expected to work from 7.30am to 7.30pm like the previous occupant; the fact that she had not been paid overtime to attend night meetings held by the District Office; the fact that she had not been paid the official business rate to use her own vehicle for business purposes Also she raised a concern about the level of hygiene in the workplace. It was mentioned at the meeting that the ladies sanitary bin had not been emptied for some time and it was full More recently in terms of hygiene, Jane has said theres currently a dead rat in a cupboard in the office. The stench from that rat would be obvious. There are rat baits in the office, it has taken the bait and it has hidden itself somewhere creating a bad stench ..
There were a number of concerns late last year about the way that National Parks were conducting a process of reduction of numbers and a restructuring process. We raised concerns through the Ministers office and the Ministers office gave us the ability to veto the redundancies as they come through. So basically were the last port of call .On this occasion it hadnt occurred but, worse still, the (support clerical) officer was being forced out, which is against government policy .
Commissioner, I would like to say that the treatment that Ms Doe is being served up with in terms of expectation from management of how long she should stay on the job each day and how much work she should perform and the manner in which she is being spoken to by the District Manager, has happened previously. The previous incumbent of the position [denoted here PI] submitted a statutory declaration to the association in terms of what occurred during her employment at National Parks Sub District staff were treated as inferior and constantly bombarded with aggressive e-mails and demands for information and without any consideration of other work responsibilities. These emanated in particular from the District Manager .. Whilst National Parks and Wildlife Service had an equity policy, [PI] is of the opinion that it is not always practised in the workplace as it should be. [PI]s thoughts were that all staff should be required to work in a fair and accountable manner and should have respect for what others do. This equitable manner was not being expressed to [PI] throughout her working day from management which of course caused some disharmony and dissatisfaction in the workplace .In summary [PI] would have liked to have continued working for at least another 2 years but owing to increased workload and current environment of the workplace, she could not continue, as it was generally non supportive and causing her a great deal of distress. Thats in the Departments words .
Another issue I guess we should raise is that Jane is hearing impaired, she is deaf in one ear, and the local manager in response to being told this, made the comment, "I thought your brain couldn't cope with two things at once." Thats the type of comment that shes being faced with, Commissioner .
NPWS: As part of the governments position and strategy to reduce the costs of corporate support amongst all government organisations, the National Parks and Wildlife Service had to look at which positions and which services we could no longer provide The Service wrote to the PSA in October last year, identifying a number of positions, of which the clerical officer position was one, indicating that those were the ones proposed to be abolished .I am instructed that a number of officers in the subdistrict were told no longer to approach Ms Doe directly with requests to undertake work and duties, that they were to go and speak to the sub district manager. My instructions are that went out in written form to all people in the subdistrict.
With regard to award entitlements, the Service is certainly happy to look at any of those claims. I am instructed that Ms Doe has been advised that, like all government departments, we do have financial realities of life and that sometimes cash payment of overtime is not possible but certainly time in lieu is provided. The overtime award is certainly there.
COMMISSIONER: If that is an option which is provided through the award, then that certainly should be clarified prior to the overtime being worked, should it not?
NPWS: It certainly should Commissioner. In regard to the tuition fees, the Services Conditions Award provides for reimbursement of HECS fees for university courses. That as (PSA) said, is subject to some negotiations at the moment, as to whether postgraduate studies are considered necessary to undertake a number of jobs in the organisation.
COMMISSIONER: Again, Im concerned that this would normally be a matter that requires prior approval and, if such approval is granted and study is undertaken on that basis, it would seem unrealistic then to withhold the money on the basis that "we might change our minds about what we do in the future." .
We have had some discussion today and there will be substantial further discussions on various issues which have been raised. In particular, Ms Doe you wanted to raise the issue of harassment and derogatory comments made in the workplace.
DOE: Yes Commissioner,
COMMISSIONER: I would expect such comments as were provided in the example from (PSA) to be totally inappropriate in the workplace (IRM).
AFTER REPORT BACK ON 18 MAY 1998
PSA: Issues in terms of harassment or what we termed harassment were discussed. Basically, we were asking that the member get a bit more support from the local manager at Subdistrict level. The local representative went back and straightaway said to our member," You cant contact the Union. You cant use facsimiles to...." We had that resolved and I had the Director General of the Department actually involved himself in that.
If I have a concern that would be it but Im not about to keep coming back to the Commission to get that sorted out, I think that is something we can resolve.
NPWS: Hopefully, all of those issues have now been resolved. All the people in the area too, as well as Ms Doe are now aware of what each need to do in regards to ensuring that award entitlements are met; that everybody is clear on what their responsibilities are in ensuring that those are paid promptly and that the appropriate conditions are met on behalf of the staff member as well to ensure that they are complying with the award.
A work experience person accompanied the NPWS representative to the IRC hearings and subsequent meetings from the Service as an observer. It appeared that the NPWS was training this person in conducting industrial matters before the court. I was never asked permission to have an observer present during confidential discussions surrounding my employment. Prior to the court mentions the temporary Area Manager had advised me "The DAM is over at Head Office with the Industrial Relations Manager. We are building up a case against you"
Despite court proceedings the workplace conditions changed minimally to more suitable premises in a former ranger house away from the works depot shed where the office had been formerly located. The decomposing bush rat was removed from the building cupboard and foundations. Some months later direct telephone lines were also installed. Staff on most occasions did not use their direct lines and calls continued to arrive via the common switch number. Two new CD/radio/cassette players were purchased for the field staff and rangers. A colour television with video recorder was also purchased which after a month was taken by a ranger into his house. I never saw the television and video recorder again. For an agency claiming to be in such dire financial straits the NPWS seem to be able to pull money out of a hat for what most people would deem unnecessary purchases.
Once again I was told I had to work overtime to attend a meeting with gate collectors and I was informed by the local manager, the time would not be paid as "we dont have any money" and that if I refused I had a "bad attitude". The Service paid neither the overtime nor the meal allowances, which should be paid for. The administration officer I shared the supervision of the collectors with was exempt from doing overtime as she did not live locally and had a baby to care for. No instructions for staff not to approach me with work were given and this practice continued. The fleet motor vehicle attached to the Subdistrict was used by a manager from another area for personal use, necessitating me to use my vehicle for work related purposes. I am still owed a mileage allowance by the NPWS.
My previous position before working with the NPWS was in the NSW Industrial Registry. I held the position of drafting clerk. My duties involved drafting industrial awards. It was apparent to me from my background at the Registry that the current awards were not exhibited in the workplace. This is a breach of Part 1, Section 361 of the Industrial Relations Act 1996. A penalty of 10 penalty units is payable for breaching that section of the Act. The relevant section of the Act may be viewed at http://www.dir.nsw.gov.au/action/legisln/.
Instead a copy of the departmental schedule only is available for staff perusal. This does not reflect the award made by the IRC involving the union contribution, exhibits and comments made on transcript by the judicial officer or the parties involved. The ratified and exhibited awards by the Commission reflect the true rates of pay, conditions and allowances by which employees should be paid. The NSW Industrial Registry is part of the Attorney Generals Department, within the portfolio of the Hon Bob Debus, Attorney General.
Most relieving opportunities advertised within the Service as internal expressions of interest do not provide backfilling, sustenance, accommodation or travelling allowances. This would be unlikely to attract any applicant for the position unless they lived nearby. Examples of these are Information & Retail Officer CO1/2 at Tumut, Regional Administration Officer, Alstonville and Area Manager, Bobbin Head. Accordingly, public sector principles of Equity and Equal Employment Opportunity are not complied with.
I had brought these matters to the attention of the Industrial Relations Manager, (IRM) when I commenced duty. In a telephone conversation I had with her a few weeks after I started duty she refused to rectify the situation. I then approached my local District office that took my copies of the settled awards I had brought with me from the IRC to the NPWS. The District Office refused to make representations to Hurstville Head Office to change the awards. It was only after persistent demands that these true versions of the awards were returned to my possession several months later. In addition, standard public sector human resources practices such as leave returns and timesheets were not kept at the District. The Service does not complete leave returns. It is possible for a staff member to take sick or recreation leave for many months and fail to submit a form to have the leave taken deducted from their leave credit available to them.
In July 1998 until December 1998 I was absent on leave-without-pay to undertake postgraduate study. The primary reason was to evade a work environment I could no longer bear. During this time I desperately sought another position elsewhere in the government upon my return to duty. I was successful in obtaining a relieving opportunity for six weeks in another district. It is standard practice in the NSW Public Service to pay a relieving allowance to staff working away from their usual headquarters. The NPWS refused to pay this. They did however, on this occasion meet my accommodation expenses, which for the first fortnight were in an on-site caravan. As I was due to return to my substantive workplace, an exchange of e-mails took place between the District Administration Managers between the two districts. This exchange related to an attempt to have me placed on standard hours, thereby losing my flexible working hours privileges. The response was as follows:
"As Jane will be working standard hours upon her return, she will need to have accrued flex leave."
I had never been late for work; however, I observed on several occasions my co-worker was habitually tardy, sometimes not attending for duty until 10.30am without explanation or prior authorisation from me as her supervisor.
My office co-workers behaviour gave me considerable cause for complaint. She refused to place revenue collected from entry ticket and permit sales in addition to unsold permits in the office safe at night. Both cash and permits were repeatedly left in a two drawer unlocked filing cabinet. On 7 October 1999 I counted the revenue in the filing cabinet to be $3,672. Earlier that year in February she had left petty cash unsecured in a mail pigeonhole over the weekend in the sum of $359.30 with the contents plainly written over it. As the office was accessible by staff working a seven-day roster, any person accessing the office could have taken it over the weekend. I took photographs of these on 8 February 1999, which I later presented to management as evidence of my allegations. Her excuse for failing to lock the revenue in the safe was that her key did not fit the door. The key was tried in the door by myself and later by Service management. No impediment existed to the opening of the door by management or myself. NPWS management did however; omit these issues from the report they presented to the Service.
Often the collectors reconciliation sheets did not tally with the revenue banked and explanations for missing permits were not forthcoming. The District management had on 14 December 1998 forwarded a facsimile to all four administration offices in the District advising that revenue status for the 1997/98 financial year showed receipts in the amount of $199,091.70 with a major discrepancy and shortfall of $27,078.30. This averages to more than 500 permits unaccounted for across the District for the 97/98 financial year. The advice received is reproduced here.
In addition to the missing permits, other fiscal issues were of concern to me. Staff used $51.90 from petty cash to pay for the 1997 office Christmas Party. Petty cash was also used to purchase chocolate bars. Staff did not produce a chit signed by their field supervisor and procedural requirements of the Public Sector Finance and Audit Act 1983 were not adhered to.
These included extreme tardiness in bill payment. I often received abusive telephone calls from irate and angry creditors threatening debt recovery action. A representative from Energy Australia came to the office on one occasion pursuing non-payment of outstanding invoices totalling several thousand dollars. Kimbriki Tip was paid their January invoice the following July and received a double payment of $731 for the same invoice. I do not believe the NPWS took any steps to recover the second unnecessary payment of $731.
An overdue bill from JAX tyres had a sticker, which read:
Weve asked you once,
Weve asked you twice
And done our utmost to be nice. To keep on asking we detest
This is our very last request. Unless you pay and promptly too.
Therell be no option but to sue. Were waiting - now its up to you!
Public sector tender procedures had not always been followed and contractors submitted accounts for work, which could not often be matched with a corresponding order, as an authorisation for the same had never been raised. I found pass no: K80250170 in a filing tray which was a colour photocopy taken of a bona fide pass. A collector at an entry station had confiscated this. I made a report of this to NPWS management at their Head Office in Hurstville, New South Wales.
Upon my return to my substantive workplace at the end of January 1999 I found the office to be in disarray and chaos. Collector revenue bags were missing, files and the contents of cupboards were strewn over the floor. The filing tray was full of documents dating from six months prior. I drove my vehicle to the District office to speak to the District Manager. He then telephoned a Manager from the Human Resources Unit, who ordered me to return to the workplace. Rather than address the workplace issues, the PSA representative and I met with that person who would only suggest another temporary work location for one month. A short time later that manager became the incumbent of a position as a clerk Grade 11/12, Acting Manager. This position was created pursuant to the NPWS restructure. She was subsequently appointed to the position after a selection process. Within two years the position was declared redundant and that incumbent received a lucrative redundancy payout.
In February 1999 I filled a vacancy at a regional office for one month. During that time I approached the Manager Administration and Finance (MAF) and the Regional Manager regarding the management issues I was concerned about. The MAF was dismissive of my complaints and no action was taken on them. The MAF was later promoted to the position of Manager, Operations and Support Co-ordination Unit (MOSCU) after several months of acting in the position. This position is a clerk Grade 11/12. A clerk Grade 11/12 in 2003 attracts a remuneration package of $95,156.
After one month I was forcibly returned to my substantive workplace.
The IRM then visited the workplace and had a closed-door conversation with the ranger acting in the Local Area Manager position. The IRM was subsequently promoted to the Public Sector Management Office (PSMO). The PSMO is a division of the Premiers Department with a value statement dedicated to providing ethical industrial advice to government agencies.
On 18 April 1999 I wrote to the Director-General, Mr Brian Gilligan in accordance with the NPWS Professional and Ethical Conduct - guidelines for staff. This publication includes the code of conduct, use of NPWS resources and fraud and corruption prevention guidelines. I outlined the misrepresentation of the position in the first instance, fiscal mismanagement and the behaviour of co-workers. I indicated the workplace had never had a manager substantively appointed before I commenced my employment, and no control or general supervision prevailed in the workplace because of this. Three weeks after the IRM visit to the office, the staff lodged a group complaint. The names were blacked out in thick felt pen. It was no more than a collation of ten nonsensical memoranda stapled together. Five of the complainants were gate collectors, one of whom I had only met once.
In Australian Industrial Relations, two torts or civil wrongs may be identified. These are the tort of conspiracy to injure another in employment for unlawful purpose and the tort of intimidation in employment.
As whistleblowing researcher William De Maria has noted in his book Deadly Disclosures: Whistleblowing and the Ethical Meltdown of Australia, there is often an outbreak of complaints against the whistleblower when disclosures of wrongdoing are made. Under normal circumstances staff might not have complained or, if they had, management would have handled their complaints with some degree of suspicion. It is quite a different matter when the person who is complained against is one who has publicly questioned the probity of management or attempted to expose wrongdoing within the system. Once whistleblowers are involved in a controversial campaign, their resistance to complaints is decisively weakened. The consequence is to subvert the persons role from discloser to complained against. Suddenly (s)he has dirty fingernails, and it is made to sound like a hanging offence.
At that time I naively believed the NPWS would act ethically upon my complaint, the perpetrators would be identified and the appropriate action taken against them. I later found that others in a similar situation to myself have already reported internally and found this to be ineffective. These disclosures are often called Protected Disclosures. Identified barriers to the success of the Protected Disclosures Act 1994 as reported in a qualitative research study by the ICAC (Independent Commission Against Corruption) are listed below.
Second Review of the Protected Disclosures Act 1994 - Report of the Committee on the Office of the Ombudsman and the Police Integrity Commission (Parliament of NSW, August 2000)
I believe all of the above apply to the NSW National Parks and Wildlife Service.
For the rest of this account, I will classify my experiences under ten headings, freely adapted and paraphrased from the Government Accountability Projects list of actions that typically happen to whistleblowers.
Institutions accused of wrongdoing routinely handle investigations into their own misconduct. In many whistleblower cases, this is the equivalent of appointing the fox to investigate the theft in the hen house. When confirmation of misconduct could create liability or threaten government funding, or when individual organisational leaders are the direct cause of misconduct, this approach inevitably places in-house investigations in a conflict of interest.
It was not until six months later in September 1999 that the Service sent two representatives to investigate the respective complaints. By their written admissions, "the grievance and this letter were linked and subsequently misplaced. They were returned to the Director on 29 June 1999." The position of IRM had been vacated and another officer placed in the position in an acting capacity. The new IRM and the MAF had been given the task of investigating both complaints and reporting back to the Service. The MAF bluntly told me I should resign from the New South Wales Public Service. I had raised my complaints with the MAF earlier that year. I again wrote to Mr Gilligan on 25 August 1999 requesting the MAF be removed from the investigation and be replaced with another senior officer instead. He denied this request in his response dated 8 September 1999.
"I have considered your request to remove (the MAF) from the investigation, of a grievance lodged about you, very carefully, I have also sought advice on this issue from (Acting Manager, Corporate Services). As a result of this advice and my deliberations, I have decided that the MAF) will continue to conduct the investigation in conjunction with (Acting Industrial Relations Manager, HRMU)."
Another retaliation technique is to make an example of the whistleblower. Employers may exercise the bureaucratic equivalent of placing a whistleblower in the public stocks.
On 23 September 1999 my co-workers at the works depot in the presence of these two officers subjected me to a humiliating personal attack. I was told by one field officer that "you should get a smack across your mouth you f****** bitch." I was told "things will get worse for you before they get better." After this meeting, I proceeded on stress leave for several months.
This common retaliatory strategy seeks to make the whistleblower, instead of her message, the issue: employers will try to create smokescreens by attacking the sources motives, credibility, professional competence or virtually anything else that will work to cloud the issues raised. This is the commencement of the "shoot the messenger syndrome." A common management response to a whistleblowers disclosures is to launch a witch-hunt by placing the employee under investigation, and to keep digging for "dirt" to devise a smear campaign against him or her.
On 15 & 17 November 1999 I was subjected to two days of internal investigation. None of the issues I had raised regarding fiscal mismanagement, maladministration and malpractice were addressed. I was told "you are not the watch dog".
My personal e-mails were intercepted from the computer server and read by these people as they combed through them in an attempt to find anything, which might be construed as adverse. I consider this to be a misuse of personal privacy and a breach of the Privacy and Protection Act 1988. Relevant to this is an excerpt from a speech by the Hon Bob Debus, Attorney General for NSW and Minister for the Environment (including the NPWS), on email surveillance in the workplace, supportive of an employees right to email privacy. I find it hypocritical that an agency within the portfolio of the Attorney General and Minister for the Environment engages in the very practice condemned in the Ministers speech.
At that time I asked for a copy of the finalised report to the Department to be furnished to me. This request was denied.
A year earlier I had made a complaint to the Law Enforcement Unit of the NPWS about a member of the public physically threatening me. An obsolete file was retrieved and twisted by management to be unprofessional behaviour toward the public.
My attempts to fill relieving positions or internal "expressions of interest" elsewhere in the Service were thwarted. I received a response from the District Manager at a country location who advised me in a letter dated 15 October 1999.
"At the outset I would like to compliment you on the quality of your application. However, since the relieving opportunity was circulated, the District, has received its budget for this year. Based upon the allocations within our budget, I will not be filling the vacant position for the period as circulated. This is essentially a risk management decision on my part, with the remaining staff undertaking those duties whilst the Administration Manager is on leave."
This tactic is commonly reflected in statements such as, "You will never work in this town/industry/agency." Threats can also be indirect: employers may issue gag orders, for example, forbidding the whistleblower from speaking out under the threat of termination.
On 22 December 1999 I met with the three members of management including the SES Director. I advised the Director that the departmental internal investigation was totally biased against me. I quote from a letter dated 22 December 1999.
"I believe that the resolution of this grievance lies within my directorate and if left unchecked will exacerbate the current situation and may harm your career prospects . We agreed that you will be offered an opportunity to demonstrate your skills, abilities and teamwork in a new location and that:
"the slate will be wiped clean. This means that issues raised by you and other parties in this grievance will be left in the past .I also ask that you sign the agreement below and return to me at your earliest convenience."
I refused to sign any such agreement.
I believe it was the intention of the NPWS to induce me into signing an agreement, which would prevent me from speaking out at a later time regarding any of the issues, I had raised, including the misrepresentation of my employment duties and the disappearance of the park entry permits.
I then received another letter dated 19 January 2000 approving further leave until 6 February 2000. It also read "Any extension beyond that date will be dependent upon receiving your endorsement to the matters agreed to at our meeting last December." Then another letter dated 14 February 2000, which read "I refer to my letter of 19 January 2000 wherein I sought your agreement to the outcomes of our meeting of 21 December 1999. (It was the 22nd). In the absence of any advice to the contrary, I will assume your agreement to these outcomes."
My increment to Clerk, Grade 4 is at the time of writing outstanding and unpaid. This is the sum of $1,305. Some time later I wrote to the Director General regarding payment of money owing to me. His response was that conditions imposed on me by the Director were not met. As I recall, I was advised by the MAF not to make any comment to co-workers or any other person about the poor performance of the NPWS operations or the payment of money owing to me would continue to be withheld.
This is a method by which an employer attempts to "manufacture consent" amongst employees. By withholding payment of wages or subtle threats of demotion or blocking of promotional appointments, employees concerned about their livelihood are prevented from speaking out.
The following excerpt is quoted from the case of Kardell -v- South Eastern Sydney Area Health Service (970261)( Dec No:261/97)
"The modern relationship of employer and employee can no longer be simply characterised as one of domination and subservience. In the modern working world, employees are entitled to be assertive. They are entitled to, in private conversations with fellow employees to be openly critical of their employer, and of management. That sort of behaviour is part of the normal working environment in most workplaces."
If a robust organisation such as the NPWS claims to be, was comfortable in its capacity to manage its core business, management would not have to resort to intimidation practices toward employees who dare to speak up about mismanagement and maladministration.
Employers occasionally spend months or years building a record to brand a whistleblower as a chronic problem employee. To lay the groundwork for termination, employers may begin to compile memoranda about any incident real or contrived, that conveys inadequate or problematic performance on the job; whistleblowers who formerly received sterling performance evaluations may begin to receive poor ratings from supervisors. This is often followed by a series of confrontational counselling sessions in which the employee is baited to lash back. Often ordinary speech and actions assume Kafkaesque proportion. Selective attack is the essence of victimisation.
The letter dated 22 December 1999 also stated, "Your behaviour and attitude in the work place was not conducive to effective teamwork and there are concerns about your performance in the role as Sub District Administrative Officer."
Until that time I had received a most satisfactory work performance review from the NPWS. I quote from my performance appraisal from January.
"Based on my experience with Jane working at Hunter District, I would have no reason not to sign for progression, i.e. services and conduct are satisfactory. It was countersigned by the District Manager; the above officers conduct, punctuality, performance of duties and attendance record are satisfactory and payment of the increment due is recommended."
Yet at a later time this same man produced a statement to the MAF conducting the internal investigation that my services were deficient. I deduced that he was pressured by the NPWS into later making such an adverse statement.
The NPWS received three verbal references from the IRC prior to my commencing employment with them. In addition I provided them with the following written references.
"Jane was under my supervision for a total of eighteen months and during that time I was most impressed by her abilities in a clerk. She impressed with her efficiency and no nonsense attitude to the point where her work output would be above average. (Mr IWF, Magistrate, Attorney Generals Department- 20 February 1989)."
"I wish to convey sincere thanks for your concurrence in Ms Does temporary appointment over such a lengthy period and record my appreciation for her dedication and application to duty. She has made a valuable contribution to the Employee Services Branch and her conduct and services have been exemplary. (Department of Courts Administration - 29 January 1993)"
I was aware that the MAF was inviting staff to make adverse comments about me and I have a copy of what I considered to be nonsensical memoranda which he solicited from a female employee under his supervision on 21 June 2000 regarding an alleged verbatim conversation I had with her which does not reveal anything in particular. I wonder why it was solicited in the first place? My family and friends commented that the NPWS was pursuing a quest to pursue a vendetta against me as a perpetual target, and that it was driven by the MAF. This is an example of wrongdoers closing ranks against a whistleblower.
I also found that an adverse statement had been placed on my file unknown to me, which was authored by a male person (who filled in for a brief period as Administration Manager and whom I had also only met on one occasion). This was dated 5 September 1997. I recall the verbatim conversation regarding the removal of this document on 22 December 1999.
PSA: Get it off!
NPWS: But (former IRM) said to keep it on!
PSA: Get it off! Dont make me go down to the Commission over this!
It is apparent from this conversation that the former IRM had taken an instrumental role in co-ordinating a campaign of harassment by the Service against me. Personal attacks on an employee are an easily disguised method of payback by management.
I quote from a report of inquiry made by the NPWS into the male person who authored the adverse statement. These are unrelated matters to my complaint:
"To date, the investigation has determined a total of 27 alleged breaches of discipline associated with the use of suspected fraudulent invoices or the misappropriation of petty cash and a further 70 alleged breaches of discipline associated with breaches of the Public Finance and Audit Act 1983, the Treasurers Directions, and NPWS Accounting Policies and Procedures "
This casts doubt on the credibility of the author of the adverse statement. I wonder why an ethical organisation such as the NPWS placed this document on my personnel file without my knowledge in the first place.
Psychiatric fitness for duty examinations are one of the ugliest forms of retaliation, and have long been used as a way to spotlight the whistleblower. It is a common way to discredit someone, fan the rumour mill and ultimately the purpose is to have a dissenting employee retired medically unfit from working in the organisation.
On 20 April 2000 I was advised that I was to be psychiatrically examined by HealthQuest. HealthQuest is a branch of the NSW Department of Health. The examining officer advised both myself and the NPWS that:
"The examining psychiatrist found that there has been such a breakdown in communication and mutual trust that Ms Doe would be better employed in another department. This would however, be an administrative matter."
The NPWS then wrote to HealthQuest on 22 May 2000 (a copy of which was posted to me), which read:
"It is noted from the HealthQuest report about Ms Doe that you state that there is no evidence of any psychiatric symptoms warranting a diagnosis of any psychiatric illness. In addition the report states that from a psychiatric point of a view she is fit to return to work. The Service would appreciate an opportunity to discuss this case with you prior to your written response. I can be contacted on Ph:9******* to arrange a telephone conference."
The recommendation that I be transferred to another government department was never acted upon by the NPWS. In my opinion this was a breach of the Occupational Health and Safety Act 1983. I also take exception to the NPWS discussing my medical condition with a doctor in an attempt to influence a medical report. I had not given any authorisation to the Service to contact the medical practitioner, nor to discuss my condition.
In past years representatives from Whistleblowers Australia, New South Wales Branch have picketed HealthQuest regarding recommendations to retire medically unfit government employees who are perfectly well enough to continue a productive working life. I believe this lobbying has achieved a certain amount of success.
I then applied for a temporary administrative vacancy in a neighbouring national park. I received no acknowledgment of my application. A temporary employee subsequently filled the vacancy. The permanent incumbent of that position continued to seek employment elsewhere and had complained to me on several occasions regarding an unmanageable workload. She attended work on Boxing Day 1997 public holiday in her own time to clear a backlog of work.
Perhaps as common as the retaliatory tactic of isolating or humiliating whistleblowers is setting them up for failure. This may take many forms sometimes by having the investigator performing the bogus investigation, becoming the supervisor or the person in charge of performance appraisal. This is a situation where the whistleblower will never be able to obtain a satisfactory appraisal. Another retaliatory technique is to transfer the whistleblower to a bureaucratic Siberia.
Upon my return to work I was advised in a letter dated 31 May 2000 that I was to report to duty at the Directorate. The MAF who headed the internal investigation was to be my immediate supervisor. I was advised this was to be a temporary work location for a period of six months to monitor my work performance. In a letter dated 7 June 2000 the MAF had written
"The department is aware that you have been absent from duty without authority since Monday 5 June 2000 you are hereby directed to resume duty and continue to perform your duties in a regular and reliable manner . Failure to comply with these directions will result in disciplinary action being taken against you."
Yet on 12 September 2000 I received written confirmation by facsimile from NPWS, Human Resource Management Unit of authorised leave from 5 June 2000 until 14 June 2000. The form had been posted to the MAF for authorisation.
I found it lacking in procedural fairness that this man became my direct supervisor when I had alleged bias on his part of an internal investigation and subsequent whitewash and cover up.
I was told by him that I was not to apply for temporary positions elsewhere. I was from that time subject to constant monitoring and covert surveillance of my movements by NPWS management. I was also informed that payment of my increment would continue to be withheld if I continued to make comment about the NPWS and its operations.
In a letter dated 6 June 2000 addressed to the Director, I requested travelling allowance pursuant to clause 24 of the Crown Employees (National Parks and Wildlife Service) Conditions of Employment Award and the corresponding public sector travelling awards be paid to me. I did not receive a response. When I quizzed the Director about this he informed me that he had been told the NPWS did not have to pay it.
The allowances pursuant to Section 7-11.13 of the Premiers Department-Personnel Handbook totalling $4,552.60 to date remain unpaid. This figure does not include compensatory leave for excess travelling time taken to traverse the city of Sydney.
Some months earlier I received a letter from the MAF dated 23 March 2000 headed Re: The Restructure. It commented in relation to my grade that
"I am unable to advise you on your classification as the rules seem to change rather frequently."
On 15 September 2000, the day after the MAF proceeded on three weeks leave, I was served with a notice of disciplinary inquiry pursuant to Section 74(3) of the Public Sector Management Act 1988. The instrument of appointment was signed and dated by the Director five weeks earlier. On the same date I had initiated a grievance about the MAF and his bullying behaviour. The charges read that Ms Doe has continuously failed to:
If the rules regarding my job classification seem to change rather frequently, I wonder how can I be accused of failing to perform tasks to a standard for my classification and grade.
The investigator appointed to this internal investigation was a former employee of the PSMO of the Premiers Department who calls herself a consultant. She hires her services at the rate of $44 per hour (GST inclusive) to tape interviews. Several government departments use her as I have found from my present workplace. It is not surprising when these people present reports to the departments in favour of the agency, given that the organisation is paying their account. If the Public Service Association is opposed to the tactics used by these consultants, I wonder why they have taken no action toward having these unethical work practices condoned by the government of the day stopped.
I refused to meet with or speak with her. Notwithstanding this a report was furnished to the agency.
Some time later I applied for her documentation and report to the Service under the Freedom of Information Act 1989. The majority of the document was refused by the NPWS pursuant to clause 16 of the Act; I quote:
An investigative report - even one diluted by rewritten allegations, censorship and neutered recommendations - can still be damaging to wrongdoers. As a result a related bureaucratic technique is to refuse to release the report containing the record of the investigation.
The small part of the document I was provided with also had large sections blacked out with thick felt pen preventing it from being read. The part of the report that was allowed I rebut as untruthful, defamatory and gross embellishment of conversation. It also purports incidents contrived and fabricated.
On 14 November 2000 I received a letter from the Director, which stated that he had read the report from the consultant and that he would meet with my supervisor and myself the following week for performance counselling. This was the last I ever heard of the matter and no meeting was ever held or attempted to be arranged.
Around this same time the MAF said to me "this is the most challenging industrial assignment I have ever been given."
My grievance lodged against the MAF and his bullying behaviour was however dismissed by the Director. The letter posted to me was hand dated 4 December 2000, an earlier typed date of 14 November 2000 being crossed out. By coincidence 14 November was the day I raised my complaint. This gives the impression that the response was already prepared before any investigation of my complaint.
I quote from my progress review:
"Under the column listing unanticipated factors, she states other external factors which have affected my progress in an indirect manner are related to occupational violence and include: public, malicious and unjustified criticism of my work performance by my supervisor, less skilled and inferior work than that performed in my previous Department, changing my work environment unilaterally to my detriment, constant and sustained minor criticisms of my output, work instructions which are contradicted when the work is reviewed, personal abuse of me involving derogatory language, unwarranted threats of disciplinary action or other sanctions, requirement to undergo a medical examination in May 2000 for no reasonable grounds, inappropriate work demands and harassment, intimidation for making bona fide health and safety claims, discrimination and intimidation in relation to work and promotional opportunities, advising I have been the victim of a frivolous and vexatious complaint or grievance which has not been explained or resolved to my satisfaction; whereas my complaint which was neither frivolous or vexatious or trivial has been swept under the carpet and ignored completely by management. An agency, CEO and senior management which tacitly supports a management and workplace culture which condones this type of occupational violence."
One of the more subtle bureaucratic gambits is to trivialise, grossly exaggerate or otherwise distort the whistleblowers allegations - and then discredit the employee by rejecting the validity of the resulting "red herring." Bureaucracies may also lower the scandal volume by shielding agency leadership from accountability.
Mr Andrew Stoner, Member for Oxley, made a Private Member's Statement to the NSW State Parliament on 26 June 2001.
The matters raised by Mr Stoner in Parliament were so newsworthy that The Daily Telegraph printed an article on the issues headed "Park Pass Forgery". I note the comment made by the Minister to be the opposition has an appalling record in regards to making these kinds of allegations, which upon investigation prove to be unsubstantiated". What is left unsaid is the investigation was internal and non transparent.
One financial transaction in particular, which was raised on the Parliamentary record, was the registering of a vehicle belonging to the NPWS, which did not exist. On 21 September 1999 The MAF signed an authority to incur expenditure in the sum of $26,003 to pay the registration costs on 89 NPWS vehicles. One such vehicle had the registration number plate of "F." The Roads and Traffic Authority representative I liased with in September of 2000 confirmed that such a vehicle did not exist on their records. The Service paid $258 to register "F." This is reproduced here.
I made numerous representations to both the NPWS and later to official outside watchdog agencies, regarding other issues such as bias in appointments to promotional positions, redundancy packages granted to employees whose positions were not declared excess but who simply wanted to leave their employ with the NPWS and take a sizeable payout with them. I also complained about temporary agency staff employed in staff positions to cover for employees given redundancy packages. Misuse of public funds continued and I observed orders for gourmet sandwiches and refreshments for selection committees for vacant positions placed with a local store. In all government agencies I have worked in staff are required to supply their own lunch during selection interviews. On 16 August 2000 the Australian Workers Union wrote to the MAF regarding non-payment of $3601 of a members entitlements. Several members of NPWS management had completed a motor vehicle running sheet with the data of 007 and the numbers 12345 as odometer readings. Yet management had charged another junior staff member with disciplinary charges for not completing a motor vehicle running sheet on one occasion. Double standards apply to disciplinary proceedings in the NPWS. There are one set of rules for management and another set of rules for staff.
I also received advice from the Roads and Traffic Authority on 4 December 2000 that trailer registration number M95915 was registered for personal use instead of at the business rate by a member of the field staff.
I would have liked these and other matters to be placed on the Parliamentary record, but insufficient allocation of time prevented this from happening. One such issue was a consignment of annual permits, which had $295 more in value than was disclosed on the reconciliation sheet. I referred this to the ICAC also in complaint No:E01/0482.
It is interesting to note that an unidentified spokesperson from the NPWS who made the comment to the journalist from The Daily Telegraph writing the article that the allegations had been "thrown out" by the ICAC. The correspondence I received from the ICAC in response to my initial complaint No: E00/0111 dated 14 August 2000, signed by their Principal Corruption Prevention Officer confirmed the "NPWS has taken steps to address some of the problems which you identified".
The inconsistencies in the management case arise when deceptive practices are utilised to cover-up.
The "smoking gun" memo from dated 21 January 2000 also contradicts the ICACs formal advice.
I thought you might like the following in preparation for Monday. Time: 2.15-4pm Venue: Jenkins Hall
Having met with each of the directly affected people at xxxx, I think it is fair to say some or all have the following issues:Anger and frustration that the problem has been going on for so long. Much of this is directed at "Management" and "Head Office" - both are generic terms for anything beyond the Area Office.Disappointment that there is no direct, observable punishment of Jane.Concern that Jane will end up back at xxxx after the 6 month trialConcern that they may still have to deal with Jane - depending on where we place her.To begin addressing these issues,(MAF) and I have explained that:Monday is an opportunity for you to listen to their feedback about Management and Head Office with a view to improving the systemsThe Service needs to manage any future performance issues in line with the PMDS and public sector protocols. This will either improve performance or not. The Service will then manage the outcome. We have assured the staff that you are committed to the continued management and resolution of this issue in the long term.The reality is while ever Janes substantive position is at xxxx, we can not categorically state that Jane will not return. However, ,Jane and xxxx staff do not want Jane to return. The Service does not think it would be a good idea for Jane to return. As a result, we are all working towards achieving that outcome. If Jane is placed in a position that requires contact with directly affected staff, performance guidelines will be included in her PMDS about the way in which she deals with those staff.Points you might like to cover at some stage during the meeting;The situation has been going on a long time. It has been difficult and you really appreciate the continued professionalism and commitment of the staff. All be assured that although there have been a lot of accusations made, the investigation has been thorough and found that there was no substance to those accusations. There will be no residual damage to your reputations as a result. You are very interested in the groups feedback about their experience over the last 2.5 years so that the Service can learn from this case and improve the way it manages such situations in the future.
Please call me if you would like any additional information
I wonder if this memo was meant to be as confidential as my personal e-mails, which were read by these officers intercepting the computer server.
I take exception to any person working in Human Resources Management discussing my confidential and personal employment with other people in a public arena and I question their suitability to be placed in such a position.
In a letter dated 5th December I was once again requested to sign an agreement relinquishing my substantive position of employment with the NPWS. I refused to comply.No mention was made of the missing, presumed stolen, permits in the sum of $27,078.30 for the 97/98 financial year, nor any of the other issues raised which were substantiated with documented evidence sourced from the NPWS. Perhaps those permits grew legs and scampered into the bushy wilderness of the National Park. If there was no substance to any of my allegations it begs the question as to why the NPWS would place duress upon me in an attempt to sign two agreements.
The following statistics are quoted from the KPMG fraud study published in 1997. The most common causes of fraud by management were purchases for personal use (13.5%), conflicts of interest (12%) and improper use of expense accounts (11.5%). The most common forms of employee fraud were theft of inventory and plant (17.8%), misappropriation of funds (15.6%) and petty cash fraud (12.6%). I believe that all of these elements of fraud permeate the NPWS unchecked.
The scope exists in a decentralised agency with no control or accountability to exist. Of course in the power imbalance of the employment relationship it is impossible for staff to initiate probity investigations into the behaviour of management. The mechanisms of power in a bureaucracy exist from top to bottom and not vice versa.At an earlier time the Daily Telegraph had published an article headed "Service budget - 'out of control'" after complaints from other NPWS employees regarding fiscal mismanagement by the agency had been made to a reporter at that newspaper. The Australian Financial Review published an article regarding the "$1m kiosk no one used" located in the national park I worked in.
Grievance procedures, appeal bodies and courts seldom give whistleblowers any satisfaction. Pursuing such channels chews up energy for little benefit.
Subsequent to the 23 September 1999 (see point 2), I wrote to the Minister for the Environment, Mr Bob Debus who did not respond. No doubt he never actually sighted the correspondence and his ministerial advisers passed the correspondence to the Department. The written reply I eventually received signed by the Director-General dated 28 March 2000 advised: "I am writing in response to your letters of 11 February 2000 and 7 March 2000 to the Minister for Environment in which you outline some of your concerns about work practices within the National Parks and Wildlife Service (NPWS) and your employment within this Department.The Minister has asked me to inform you that he is aware of your case. He has been briefed on the process of the investigation and its outcomes. As a result of that briefing he sees no reason to involve himself in a matter that falls within my delegation.
If you still wish to take this matter further, I would recommend that you do so by contacting the NSW Ombudsman."
During the course of my representations I did write to the NSW Ombudsman, the ICAC (Independent Commission Against Corruption) and the NSW Audit Office in addition to several other bodies. The NSW Ombudsman does not deal with general employment issues on the basis that they are outside of their jurisdiction, Ombudsmans Act 1974 (Schedule 1, Clause 12). Were the Director-General or his advisers aware of this?
Some time later in mid 2001, I received correspondence from Mr Chris Wheeler, Deputy Ombudsman where the office declined to intervene. This letter advised: "What constitutes maladministration is a matter for the courts to determine." I found this to be a bizarre response as the mission statement for this organisation is "working to minimise maladministration and misconduct in the public sector."
The NSW Audit Office also refused to become involved stating my complaint was related to corrupt conduct and maladministration and therefore outside the jurisdiction of that body (D745/7632). It seemed that no agency would accept responsibility and simply deflected the complaint to another body. Representations whistleblowers make to formal channels guarantee one thing only. These avenues of appeal will not achieve any satisfaction.
It is important to understand that formal channels are appeal bodies set up by the very organisations and bureaucracies against whom these complaints are made. In a similar fashion to guidelines issued by agencies to encourage the reporting of fraud by employees, these appeal bodies may be seen as window dressing only. The NSW Ombudsman refused to entertain my appeal of victimisation for making a protected disclosure. No justifiable grounds were given. My second complaint to the ICAC was filed away by registry staff without even being read or assessed. It was only discovered when I made a follow up telephone call to ascertain the nature of progress of my complaint. All agencies cited having scarce resources which are too valuable to investigate all complaints.
No jurisdiction and a lack of resources to investigate are the two main reasons external bodies similar to these organisations give for their unwillingness to become involved.
The Shadow Minister for the Environment made representations to the Minister on my behalf for assistance. The responses were all negative and appeared to have been written by the same management staff from the NPWS I had been dealing with.
As De Maria has documented, official channels are often unhelpful. Seeking support from a Member of Parliament and the media are more promising. This avenue was sought pursuant to Section 19 of the Protected Disclosures Act 1994. Guidelines may be viewed at http://www.icac.nsw.gov.au/reporting-corruption/blowing-the-whistle/protections-for-public-officials/44. At least some part of the Act is useful. It is a pity that the rest of the Act is not considered worthwhile by any known whistleblower seeking protection from retaliation in the state of New South Wales. The ICAC in particular simply sends information back to the agency, which is usually passed down the line to the manager involved in the fraudulent or wasteful activity. The ICAC has a policy of informing the agency of the name of the complainant. This often leads not only to reprisals against the whistleblower, but also to a cover up of the wrongdoing. In other words, the system structurally is vulnerable to serving as an early warning device for those with a motive to conceal the alleged misconduct. De Maria terms these organisations "shut eyed sentries". They exist in theory only to take action against government wrongdoing.
On 29 October 1999 I again wrote to Mr Gilligan advising him that I had purchased an IBM computer at public auction for personal use. It is a former NPWS computer, which still has confidential and sensitive ministerial submissions the service had failed to wipe before sending it for consignment. The response I received dated 29 November 1999 from the manager of Information Technology Branch stated that:
"Because cleaning files is a time consuming task and there is much other work to be done by our IT specialists, it is sometimes left to work experience people to undertake this task. While this is done under supervision, all computers may not be thoroughly checked. It appears that unfortunately this one got through."
I was telephoned at home several times a week by the MAF and IRM whilst absent from work on unpaid stress leave, with supporting medical certificates. I kept an answering machine on since I did not wish to speak with them in my stressed condition. My family had also complained to me about the annoying nuisance of their incessant telephone calls. One family member commented, " This bloke is making a project out of you" They reported abusive calls from an unknown source and to this day screen calls via a machine. On 4 March 2000 I again wrote to the Director-General requesting a grant of special sick leave pursuant to clause 24 of the Crown Employees (National Parks and Wildlife Service) Conditions of Employment Award. On 17 March 2000 I received the following response.
"It is my assessment that to grant special sick leave, in this instance, would not be appropriate given that you are linking your illness to the Services attempt to effectively manage your performance."
No evidence was provided by the Director General to substantiate his assertion. I wonder why he would be concerned about my performance in particular?
Around this time I found that the NPWS had placed my superannuation contributions into the incorrect fund since the commencement of my employment with them. I received a letter from Human Resources Management Unit dated 3 March 2000, which advised
"As you are aware, we had inadvertently set you up in First State Super instead of SASS."
I eventually registered two complaints with the NSW Ombudsman (C/2000/1076 and 6033) to have this matter rectified. I had also requested the Service recognise my prior work history for extended leave purposes. After two years this request had not been acted upon and I had to lodge a third complaint (C2000/6562) with the NSW Ombudsman.
Employers may "reorganise" whistleblowers out of jobs or into marginalised positions. Another retaliation technique is to deep-freeze the careers of those who manage to thwart termination and hold onto their jobs: employers simply deny all requests for promotion or transfer. Sometimes it is not enough merely to fire or make the whistleblower rot in jobs. The goal is to make sure they "will never work again" in their field by black listing them: bad references for future job prospects are common.
This saga almost ended prior to Christmas 2000. I was successful in obtaining a position with another government agency. I was so relieved to be able to finally leave the NPWS. Even then NPWS management would not cease this relentless and tireless campaign of harassment toward me. I was told by the MAF that I was not to apply for any temporary positions whilst under his supervision. I refused to abide by this direction and was reprimanded by him for applying for positions with other agencies. The letter dated 4 December 2000 also stated
"At the completion of your six month work plan on December 15 2000, the MAF shall provide you with a written reference. This will list his role as your Immediate Supervisor, the length of time he has known you for, and a summary of your position and main duties undertaken. For him to comment on the level of work performance achieved, I urge you to use the time that remains to develop your skills." No such reference was ever provided and naturally I would not welcome any reference from this man or the NPWS. I am sure the Service was aware of this. Further on the letter reads "In reference to the issues raised in the recommended outcomes for the Grievance, given to you on September 15, 2000, you are encouraged to raise any concerns you may have with me in writing for consideration. I am satisfied this matter has now been resolved."" Those two sentences are contradictory and imply that regardless of my opinion, my concerns will be disregarded.
Just prior to my departure from the NPWS I sighted a facsimile listing in detail a copious list and the delivery details of government computers and furniture owned by the NPWS which was to be given to a former employee to be sold by their new employer, The Cancer Council with the proceeds going toward that organisation. Government audit requirements for surplus furniture stipulate public auction by government tenders with the proceeds of the sale deposited as public money.
My last day of duty was 23 December 2000. I left work on approved leave until 2 January 2001. I was to then commence duty in my new position. One of my previous NPWS supervisors had given my present supervisor a commendable reference check and confirmed:
"Janes services have never been an issue! The problem is bad management!"
In early January 2001 I received a letter signed and hand-dated at the foot by the Director. The date noted with the signature was 22 December 2000. It stated that "as you have not returned to duty with the Service.. following the expiry of your paid leave, I will assume that you have accepted the offer of temporary employment at..."
The top of the letter had a typewritten date of 2 January 2001. This gave the impression that the letter had been typed out and signed before I had ever embarked upon a period of leave.
In the first week of January 2001 I received notice of further disciplinary charges in the mail pursuant to section 66 of the Public Sector Management Act 1988. These were:
I know nothing of any of these charges with the exception of point 3. The poster is reproduced here. Only a bully would be offended by a bona-fide Australian Council of Trade Unions (ACTU) poster on bullying. This poster is on display in hundreds of government offices throughout Australia. It is a pity the ACTU can do little more for members than supply posters. Prosecuting employers who engage in this type of behaviour would be more effective and many whistleblowers believe, a more useful expenditure of member contributions. Whistleblowers with little financial backing have a David and Goliath battle against governments and bureaucracies with unlimited public money to spend on protracted court cases. Providing members with the legal assistance and legal representation they need would be a step toward industrial unions addressing the power imbalance with these matters. A bully is typically a person who is conscious of their inadequacies regarding their own work performance and is fearful of having these exposed by a whistleblower.
When I read the charges I found them ludicrous and quite humorous. In addition, these allegations do not meet the parameters established by Premiers Department guidelines for Section 66 charges. The letter was dated 5th December 2000. By coincidence, this happened to be the day I had announced I had found a position elsewhere in the New South Wales government. This date was a month before it had been posted to me by the NPWS. I have never seen these disciplinary charges laid against employees in any other government agency I have worked in. They appear to be an invention of the NPWS in targeting employees for harassment.
The NPWS telephoned me twice at work on 8 February 2001. Once again I contacted the PSA. The Director agreed to withdraw the charges. I did not receive notification of this until two and a half months later, in a 27 April letter which states:
"I am writing to inform you that, pursuant to your resignation from NPWS and subsequent employment with an organisation not covered by the Public Sector Management Act a decision has been made to discontinue this preliminary inquiry."
On 14 January 2002 the ICAC wrote to me and advised that in relation to my second complaint to them, ref No: E01/0482, three allegations were referred to the NPWS:
"The ICAC has examined the NPWSs investigation report into these allegations and is satisfied that that the matters have been properly investigated and appropriate action has been taken. Some procedural anomalies were identified. These issues have been addressed appropriately by the NPWS, and in light of this, the ICAC is satisfied that these issues do not require further attention from the ICAC."
It is a pity the ICAC did not bother to look into the nexus of my complaint which was the harassment and victimisation of myself, and the general harassment of other staff that for unknown reason have come under the scrutiny and target of attack by NPWS management. The occasional formal hearing is perhaps a public relations stance meant to provide the public with a positive image that the ICAC is taking worthwhile action toward minimising public sector corruption.
Upon my return to work after stress leave I had been allocated demeaning and menial tasks to undertake. These included mail collection and despatch and the shredding of obsolete files held by a former Director. This file related to disciplinary procedures instituted by the NPWS against employees, which in my opinion were nonsensical, and of no substance. The departmental response to my disclosure was as follows;
The Minister has referred to me your letter in which you refer to your discovery of a Service file number 031 of 1999 and to which you attached some documents you say you obtained from that file. In that letter (referring to these documents) you stated that;
"I am sure that you would agree that it is the public interest that this information be released." "If anything could be considered defamatory and causing damages to peoples reputations and careers, it would be this file".
I have sought the advice of the Privacy Commissioner and on the basis of this advice I view the information you obtained from that file to be personal information within the meaning of the Privacy and Personal Information Protection Act 1998 (PPIP Act). Accordingly I request that you return all documents and any copies obtained from file 031 of 1999 to me within seven days of the date of this letter.
A perusal of the World Wide Web site reveals a decided case before His Honour Judge Madgwick of matter number 3398 of 1995 on 11 August 1997 of Wayne Donaldson-v-NPWS at 837FCA1997. The ratio of the case held that parity of treatment and disciplinary action taken against employees within the NPWS is not consistent. The case may be viewed at the following domain address: http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/1997/837.html?query=title+%28+%22wayne+donaldson%22+%29
The theme of this account is that the NPWS uses the disciplinary process to harass and victimise targeted employees. In the Sue Ryan case, it was found by the appeal court that the misuse of the conduct of the disciplinary process by the NPWS was inappropriate and not in accordance with Public Sector protocols and procedures. Here is a key paragraph from the court judgement.
"Leave to appeal
10 We have given serious consideration to refusing leave in this case, especially in light of the fact that the PSM Act and the Regulation made thereunder have been repealed and replaced by the Public Sector Employment and Management Act 2002, which came into force in June 2003. We consider, however, the appeal raises matters of importance relating to the manner and conduct of disciplinary proceedings against public servants and notwithstanding the new statutory regime, some of the issues arising from her Honour's decision continue to be relevant to the manner in which the appellant conducts its disciplinary process. Accordingly, we have decided to grant leave."
More than 73 independent and unrelated complaints regarding widespread corruption in the NPWS have been made to the Independent Commission Against Corruption. Only one complaint has had any form of investigation by this agency. Since leaving the NPWS I have become aware of the general reputation of the Service as an agency which is grossly incompetently mismanaged. This has been the case for many years. The agency refuses to admit to ineptitude and wrongdoing and engages in cover up as a response to constant bungling. Were they to purge one bad apple manager the bad barrel organisation would still exist.
The purpose of the manuscript was to alert other NPWS staff of the extraordinary lengths this agency will go to in an attempt to preserve what they perceive to be a positive image and reputation. Selective attack is widespread by the NPWS on various staff members. Although they have raised individual complaints about bias and victimisation, these complaints have been ignored by the NPWS. Yet favoured employees often receive lucrative redundancy packages even though their positions in the agency still exist. In two documented instances employees who had been given redundancy packages were subsequently re-employed’ by the NPWS at twice their former hourly rate of pay. For an agency in such dire financial straits the NPWS seems able to find plenty of funding when and where it suits. This includes spending public money on lawyers to defend the numerous legal proceedings the NPWS attracts from various areas.
NPWS staff might be less gullible about non payment of their award entitlements for fire fighting and hazard reduction if they were aware that the funds do exist to pay for overtime and allowances but the NPWS choose to spend this money elsewhere. Service management advise staff into believing that a person dedicated to the protection of the environment should put in their own time for free.
Like most whistleblowers I found the Union to be of little overall assistance and support. I was forced to leave my employment due to the behaviour of my employer. The conduct of NPWS management amounted to a fundamental breach of my employment contract on their part. I was:
The agency partakes in excessive demotion and disciplining of employees. Forcing them to resign amounts to constructive dismissal and is a fundamental breach of the employment contract. Employers are liable for acts committed by their employees. In the case of the NPWS they have not only not prevented harassment from taking place, they have initiated it. I believe the industrial unions should be prosecuting these matters on behalf of their union members.
Two written invitations were made to the Minister, The Honourable Bob Debus, to view my documentation. No response was received from his office.
As DeMaria has noted whistleblowing is a subtle play of force and abuse. Most strikes against whistleblowers are wrapped in the beguiling garb of due process, fairness and thorough investigation, making it difficult to record the secret deals, document the ostracism and chronicle the intimidation. These days whistleblowers are not hanged in the Public Square, but swing from the clean ropes of due process and natural justice.
In September 2003 Brian Gilligan opted not to renew his contract of employment as Director General with the NPWS.
On 29 October 2006, the Attorney General and Minister for the Environment, Bob Debus MP, announced his resignation. The opposition stated Minister Debus was "bailing out from a sinking ship, prior to elections being held".