Handling misconduct - Australian Public Service Commission
Handling misconduct - Australian Public Service Commission
Handling misconduct - Australian Public Service Commission
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A Good Practice<br />
Guide<br />
<strong>Handling</strong> Misconduct<br />
A human resources practitioner’s guide to the reporting and handling<br />
of suspected and determined breaches of the APS Code of Conduct
The material in this document is provided for guidance and should not be relied upon as a substitute for<br />
detailed advice when making decisions in Code of Conduct cases. See specifically the material on page 4,<br />
under the heading ‘Limitations to this guide’, for further information.<br />
© Commonwealth of Australia 2008<br />
This work is copyright. Apart from any use as permitted under the Copyright Act 1968,<br />
no part may be reproduced by any process without prior written permission from the<br />
Commonwealth. Requests and inquiries concerning reproduction and rights should be<br />
addressed to the Commonwealth Copyright Administration, Attorney-General’s<br />
Department, Robert Garran Offices, National Circuit, Barton, ACT 2600, or posted at<br />
http://www.ag.gov.au/cca.<br />
ISBN 0 9775591 1 4
CONTENTS<br />
Introduction ....................................................................1<br />
Acknowledgement ........................................................................................................... 2<br />
Outline ............................................................................................................................ 3<br />
How to use this guide ...................................................................................................... 3<br />
Further advice/sources of information ............................................................................. 4<br />
Legal issues ...................................................................................................................... 4<br />
PART 1: FRAMEWORK AND OVERVIEW FOR<br />
HANDLING MISCONDUCT .............................................5<br />
1. Framework .........................................................................7<br />
Legislative framework .............................................................................................. 7<br />
<strong>Handling</strong> <strong>misconduct</strong> ............................................................................................... 9<br />
Terminology ........................................................................................................... 11<br />
2. Overview of the process for handling <strong>misconduct</strong> ........13<br />
Misconduct in the APS .......................................................................................... 13<br />
Agency-based codes of conduct/expected behaviours ............................................ 14<br />
Relationship between <strong>misconduct</strong> and performance management processes .......... 14<br />
The connection between work and <strong>misconduct</strong>....................................................... 15<br />
Misconduct that may also be a criminal act ............................................................ 16<br />
The process for handling <strong>misconduct</strong> ...................................................................... 17<br />
Roles and responsibilities in handling <strong>misconduct</strong> ................................................. 18<br />
Key points for agency guidance material ................................................................. 19<br />
PART 2: MAIN STEPS IN HANDLING MISCONDUCT ....21<br />
3. Reporting suspected <strong>misconduct</strong> ..................................23<br />
Whistleblowing provisions and reporting of <strong>misconduct</strong> ........................................ 24<br />
Encouragement to report <strong>misconduct</strong> ..................................................................... 25<br />
Employees reporting or witnessing <strong>misconduct</strong>—protection from retribution ....... 26<br />
Key points for agency guidance material ................................................................. 27
4. Considering a report of suspected <strong>misconduct</strong> ............29<br />
Consistency of approach ......................................................................................... 29<br />
Whether to start a <strong>misconduct</strong> action ..................................................................... 30<br />
Alternatives for addressing conduct-related concerns ............................................. 31<br />
Deciding whether to reassign duties or suspend ..................................................... 32<br />
Key points for agency guidance material ................................................................. 38<br />
5. Investigative process ......................................................39<br />
Selecting a decision maker ...................................................................................... 39<br />
Deciding on the scope of the investigation ............................................................. 41<br />
Advising an employee of the commencement of <strong>misconduct</strong> proceedings .............. 43<br />
Investigating whether <strong>misconduct</strong> has occurred ..................................................... 43<br />
Investigation report ................................................................................................. 47<br />
Evidence does not support a case of <strong>misconduct</strong> .................................................... 48<br />
Key points for agency guidance material ................................................................. 48<br />
6. The determination and sanction .....................................49<br />
Role of the decision maker...................................................................................... 49<br />
Employee moves to another APS agency before a determination or sanction ........ 51<br />
The appropriate sanction ......................................................................................... 52<br />
Key points for agency guidance material ................................................................. 62<br />
PART 3: ADMINISTRATIVE ISSUES AND QUALITY<br />
ASSURANCE ................................................................63<br />
7. Recordkeeping and access to records ..........................65<br />
Recordkeeping ........................................................................................................ 65<br />
Access to <strong>misconduct</strong> records.................................................................................. 68<br />
Key points for agency guidance material ................................................................. 71<br />
iv HANDLING MISCONDUCT
8. Review of actions ............................................................73<br />
The review process .................................................................................................. 74<br />
Key points for agency guidance material ................................................................. 75<br />
9. Quality assurance and streamlining the process ...........77<br />
Quality assurance .................................................................................................... 77<br />
Avoiding unnecessary delay .................................................................................... 79<br />
Avoiding common pitfalls ....................................................................................... 85<br />
Key points for agency guidance materials ............................................................... 86<br />
Appendix 1: Legislative instruments ..........................................87<br />
Extracts from the <strong>Public</strong> <strong>Service</strong> Act, <strong>Public</strong> <strong>Service</strong> Regulations,<br />
the <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>er Directions and the Privacy Act ......................... 88<br />
Appendix 2: Suggested agency procedures under<br />
section 15(3) of the <strong>Public</strong> <strong>Service</strong> Act 1999 .............................99<br />
Appendix 3: Employees suspension checklist .........................103<br />
Appendix 4: Relevant records in National Archives<br />
of Australia Administrative Functions Disposal Authority,<br />
February 2000 ............................................................................107<br />
Appendix 5: Checklist of key points for agency<br />
guidance material ......................................................................115<br />
Appendix 6: Sample clauses for inclusion in agency code of<br />
conduct investigation processes relating to the disclosure of<br />
personal information .................................................................119<br />
Appendix 7: Sample letter advising complainants on the<br />
outcome of an investigation .....................................................123<br />
Figure 1: An option for implementing the suggested agency<br />
procedures in Appendix 2 .............................................................................................. 22<br />
PART TWO<br />
v
INTRODUCTION
The APS Values (the Values) and the Code of Conduct (the Code) provide the standard<br />
of behaviour expected of agency heads and APS employees. Under the <strong>Public</strong> <strong>Service</strong> Act<br />
1999 (the PS Act), responsibility for promoting the Values and for developing procedures<br />
to handle breaches of the Code within their agency lies with agency heads. Action taken<br />
by agency heads must be consistent with the requirements of the PS Act and the instruments<br />
issued under that Act, including the <strong>Public</strong> <strong>Service</strong> Regulations 1999 (the Regulations) and<br />
the <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>er’s Directions 1999 (the Directions).<br />
This good practice guide has been developed to assist human resource practitioners in<br />
agencies to review and improve their guidance material and procedures for reporting and<br />
dealing with suspected breaches of the Code. Actions that are suspected breaches, or<br />
determined to be breaches of the Code, are referred to as suspected <strong>misconduct</strong> or <strong>misconduct</strong><br />
in this guide.<br />
This guide, together with the new <strong>Australian</strong> <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong> (the <strong>Commission</strong>)<br />
publication, <strong>Handling</strong> Misconduct Summary Guide, complements other <strong>Commission</strong><br />
publications, in particular:<br />
• APS Values and Code of Conduct in practice—A guide to official conduct for APS employees<br />
and agency heads 1<br />
• Respect: a good practice guide to promoting a culture free from bullying and harassment in the<br />
APS. 2<br />
The Summary Guide and this HR practitioner’s guide replace the 2002 <strong>Commission</strong><br />
booklet Managing Breaches of the APS Code of Conduct.<br />
Acknowledgement<br />
In developing the guide, the <strong>Commission</strong> has drawn upon the results of an evaluation<br />
undertaken in 2004 into managing suspected breaches of the Code. We acknowledge the<br />
contribution of, and thank, the Department of Foreign Affairs and Trade, the Department<br />
of Finance and Administration, the Child Support Agency, the <strong>Australian</strong> Taxation Office,<br />
the Department of Health and Ageing and Centrelink. We would also like to thank<br />
Centrelink for providing us with access to its recent agency guidance developed by the<br />
<strong>Australian</strong> Government Solicitor. Without the assistance of these agencies, this practitioner’s<br />
guide would not have been possible.<br />
1<br />
<br />
2<br />
<br />
2 HANDLING MISCONDUCT
Outline<br />
The guide is in three parts. The underlying theme is developing processes which adhere to<br />
the legislative requirements but that are also both timely and efficient.<br />
Part 1 (Chapters 1–2) outlines the legislative framework and some general principles<br />
applying to reporting and dealing with suspected <strong>misconduct</strong> (i.e. suspected breaches of<br />
the Code) in the APS.<br />
Part 2 (Chapters 3–6) outlines steps and processes involved in reporting and managing of<br />
<strong>misconduct</strong>.<br />
Part 3 (Chapters 7–9) covers a variety of issues related to handling <strong>misconduct</strong> including<br />
quality assurance mechanisms that can be used by agencies to ensure a timely and effective<br />
approach to conduct issues in the workplace.<br />
This publication is only available in electronic form from the <strong>Commission</strong>’s website and<br />
the <strong>Commission</strong> would welcome any comments on the usefulness of this version. Comments<br />
can be submitted by email to employmentadvice@apsc.gov.au. Please use ‘<strong>Handling</strong><br />
<strong>misconduct</strong> agency comments’ in the subject heading of the email.<br />
How to use this guide<br />
While the guide will be useful for APS employees, its primary function is to assist human<br />
resource areas in agencies to develop a timely and effective approach to managing suspected<br />
and proven <strong>misconduct</strong>.<br />
At the different stages of the process for handling <strong>misconduct</strong>, the relevant issues and<br />
appropriate good practice principles are identified and discussed. At the end of relevant<br />
chapters, the guide suggests key points that should be addressed in agency guidance<br />
material. These are included as a checklist in Appendix 5. Other appendices provide further<br />
information pertaining to <strong>misconduct</strong> including the legislative instruments, relevant<br />
records in the National Archives of Australia Administrative Functions Disposal Authority,<br />
an employee suspension checklist, and a checklist of key points to be included in agency<br />
guidance material. Relevant parts of this checklist are included at the end of each chapter.<br />
Agencies may use or adapt the information in this guide to develop, or revise existing,<br />
agency guidance material.<br />
The suggested material for incorporation into agency guidance included in this publication<br />
is not intended to be prescriptive. It is included to be of practical assistance to agencies<br />
but should be adapted to suit agencies’ circumstances. The good practice principles can<br />
also be incorporated in other ways into existing agency guidance material and procedures.<br />
INTRODUCTION 3
Limitations of this guide<br />
When using this guide, agencies must note that it refers to the legislative provisions in<br />
place in February 2007. In addition, what constitutes a breach of the Code is frequently<br />
affected by evolving case law.<br />
The <strong>Commission</strong> has used its best endeavours to ensure the accuracy of the material at<br />
the time of writing, and will update the document as required. The <strong>Commission</strong> will also<br />
endeavour to notify agencies of any significant changes to the <strong>misconduct</strong> regime through<br />
our website when they come to our attention.<br />
However, we are unable to guarantee that this guide is complete, correct and up-to-date<br />
at any particular point of time, or that it is relevant to the particular circumstances of any<br />
matter. It should not therefore be relied upon as a substitute for detailed advice when<br />
making decisions in Code of Conduct cases. Agencies should consider obtaining legal<br />
advice before making a decision if they are uncertain of their obligations or there is any<br />
element of uncertainty or risk involved.<br />
Further advice/sources of information<br />
Agencies can access the latest information on the Values and the Code through the<br />
<strong>Commission</strong>’s website at www.apsc.gov.au<br />
Other useful sources of information on issues relating to <strong>misconduct</strong> are:<br />
• material on the website of the Office of the Federal Privacy <strong>Commission</strong>er<br />
• legal briefings from the <strong>Australian</strong> Government Solicitor and other legal firms<br />
• published decisions of courts and the <strong>Australian</strong> Industrial Relations <strong>Commission</strong> (AIRC).<br />
Legal issues<br />
The PS Act is interpreted and applied by all APS agencies. It is therefore important that<br />
the <strong>Commission</strong> be kept fully informed of current legal thinking on the interpretation of<br />
the Act in relation to <strong>misconduct</strong> so that this can inform the advice provided by the<br />
<strong>Commission</strong> to agencies.<br />
Agencies are requested to liaise with the <strong>Commission</strong> when obtaining advice and forward<br />
copies of any legal advice that they obtain regarding the Act to the <strong>Commission</strong>, in line<br />
with Clause 10 of the Legal <strong>Service</strong>s Directions.<br />
These should be forwarded to:<br />
Legal <strong>Service</strong>s Unit<br />
<strong>Australian</strong> <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong><br />
16 Furzer Street<br />
Phillip ACT 2606<br />
4 HANDLING MISCONDUCT
FRAMEWORK AND OVERVIEW FOR HANDLING<br />
MISCONDUCT<br />
PART 1
1. FRAMEWORK<br />
Under the <strong>Public</strong> <strong>Service</strong> Act 1999 (the PS Act), agency heads are responsible for upholding<br />
and promoting the APS Values (the Values). Senior Executive <strong>Service</strong> (SES) employees<br />
are required to promote the Values by personal example and other appropriate means, and<br />
APS employees are required to uphold the Values. The Values together with the APS Code<br />
of Conduct (the Code) form the statutory foundation underpinning the conduct of all<br />
APS employees.<br />
The legislation does not refer to ‘<strong>misconduct</strong>’. The term ‘<strong>misconduct</strong>’ is used in this guide<br />
as a convenient and readily understood label for conduct that breaches the Code. Any<br />
actions or behaviours must be referred to as suspected <strong>misconduct</strong> until a decision is<br />
made in accordance with established agency procedures that <strong>misconduct</strong> has occurred.<br />
Legislative framework<br />
Section 10(1) of the PS Act contains the Values which form the framework for good<br />
public administration and, together with section 13 and Regulation 2.1 of the <strong>Public</strong><br />
<strong>Service</strong> Regulations 1999 (the Regulations), sets out the standards of conduct required of<br />
APS employees. The relevant legislative provisions in the PS Act (including the Values<br />
and the Code), the <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>er’s Directions 1999 (the Directions) and the<br />
Regulations are included in Appendix 1.<br />
The Code applies to:<br />
• all APS employees (i.e. ongoing and non-ongoing employees and heads of overseas<br />
missions). It does not apply to locally engaged employees in overseas missions. (section<br />
7, section 13, section 39, section 74 of the PS Act)<br />
• all agency heads, including secretaries of departments, heads of executive agencies and<br />
heads of statutory agencies (section 14(1) of the PS Act)<br />
• certain statutory office holders (sections 14(2) and (3) of the PS Act and Regulation 2.2).<br />
Section 15(3) of the PS Act requires agency heads to develop procedures for determining<br />
whether an employee in their agency has breached the Code. This legislative requirement<br />
is supported by the Directions and the Regulations. If an employee is found to have breached<br />
the Code, an agency head may impose sanctions (section 15(1) of the PS Act).<br />
PART ONE 7
The procedures must comply with the basic procedural requirements contained in the<br />
Directions (section 15(3)(a) of the PS Act) and must have due regard to procedural fairness<br />
(section 15(3)(b) of the PS Act) as the decisions made during the processes can be subject<br />
to administrative and judicial review. It is important, therefore, that anyone given<br />
responsibility for the various stages of the process—the investigation of the <strong>misconduct</strong>,<br />
the determination of whether there has been a breach of the Code and the setting of an<br />
appropriate sanction—understand the legal requirements of the processes and their<br />
obligations to all parties.<br />
It is preferable for agency procedures to include a statement about how the person who<br />
determines whether a breach has occurred is to be selected or otherwise identified. An<br />
agency head may nominate any person to make that selection, but the procedures must<br />
clearly identify one person or position who can select a decision maker in each case.<br />
Agency heads must take reasonable steps to ensure that every employee in their agency has<br />
ready access to the documents that set out the procedures (section 15(5) of the PS Act).<br />
The Directions (Chapter 5) set out the basic procedural requirements with which an agency<br />
must comply in its procedures for determining whether an APS employee has breached<br />
the Code. These provisions include that:<br />
• before any determination about whether or not an APS employee has breached the Code<br />
is made, the employee must be informed of the details of the suspected breach (including<br />
any variation of those details) and the range of sanctions that may be imposed. The<br />
employee must also be given reasonable opportunity to make a statement in relation to<br />
the suspected breach (Clause 5.2 of the Directions).<br />
• the process for determining whether an APS employee has breached the Code must<br />
be carried out with as little formality and as much expedition as a proper consideration<br />
of the matter allows (Clause 5.3 of the Directions).<br />
• reasonable steps must be taken to ensure that the person who determines whether an<br />
employee has breached the Code is, and appears to be, independent and unbiased<br />
(Clause 5.4 of the Directions)<br />
• after a determination in relation to a suspected breach of the Code has been made, a<br />
written record stating whether the employee has been found to have breached the Code<br />
must be prepared (Clause 5.5 of the Directions). The Archives Act 1983 and the Privacy<br />
Act 1988 apply to records of this kind. 3 Where the written record is to form the basis of<br />
a statement specifying the grounds for termination of employment (as required by section<br />
29(2) of the PS Act), the statement must also set out the findings on material questions<br />
of fact and refer to the evidence or other material on which those findings were based<br />
(section 25D of the Acts Interpretation Act 1901).<br />
3<br />
The Freedom of Information Act 1982 would also apply.<br />
8 HANDLING MISCONDUCT
The PS Act and Directions contain requirements for the procedures about determining<br />
whether an APS employee has breached the Code and the PS Act provides for the range<br />
of sanctions that may be applied. There are no direct provisions covering the process of<br />
determining an appropriate sanction. In determining a sanction general administrative<br />
law standards apply, including procedural fairness, and decisions are subject to administrative<br />
and judicial review.<br />
Where an employee changes status (from non-ongoing to ongoing, or vice versa) or moves<br />
to a different agency, the applicable procedures are those that apply to the employee’s status<br />
or agency at the time when the process for determining the breach is commenced (or<br />
recommenced if an investigation had been underway in the old agency).<br />
The APS whistleblowing scheme is provided for in the PS Act and the Regulations.<br />
Section 16 of the PS Act prohibits the victimisation of, or discrimination against an APS<br />
employee who reports a breach or alleged breach of the Code to an agency head, the<br />
<strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>er, the Merit Protection <strong>Commission</strong>er or a person authorised<br />
by them. Regulation 2.4 requires agency heads to establish procedures for dealing with<br />
such reports. Clause 2.5(1)(d) of the Directions provides that an agency head must put in<br />
place measures directed at ensuring that APS employees are aware of the procedures, and<br />
are encouraged to make reports in appropriate circumstances.<br />
Other legislation of relevance to handling suspected <strong>misconduct</strong> or <strong>misconduct</strong> includes<br />
the:<br />
• Administrative Decisions ( Judicial Review) Act 1977<br />
• Freedom of Information Act 1982<br />
• Occupational Health and Safety (Commonwealth Employment) Act 1988<br />
• Privacy Act 1988<br />
• Workplace Relations Act 1996.<br />
<strong>Handling</strong> <strong>misconduct</strong><br />
Taking action in cases of suspected <strong>misconduct</strong> is primarily aimed at protecting the<br />
integrity of the APS and thereby maintaining public confidence in public administration,<br />
rather than aiming to ‘punish’ the employee per se. Sanctions are intended to be proportionate<br />
to the nature of the breach, to be a deterrent to others and confirm that <strong>misconduct</strong> is<br />
not tolerated in the agency.<br />
An agency’s section 15(3) procedures to deal with <strong>misconduct</strong> and associated guidance<br />
material should be fair and reasonable, striking an appropriate balance between the interests<br />
of employees, the agency and the public.<br />
PART ONE 9
It is advisable that the procedures for determining whether there has been a breach of the<br />
Code are kept relatively brief and be limited essentially to the requirements of the PS Act<br />
and the Directions.<br />
Agencies need to emphasise to managers and delegates, the importance of complying<br />
with the agency procedures. As they are a legal instrument, failure to comply will leave<br />
the agency exposed to legal risk. In reviewing their procedures, agencies should make<br />
them as flexible as possible while still meeting the legislative requirements. This will help<br />
minimise the risk that investigators or delegates may later be found to have breached the<br />
agency’s section 15(3) procedures.<br />
Agencies may also wish to consider including provisions in the procedures which deal<br />
with the issues such as:<br />
• different processes for different categories of employees (e.g. ongoing and non-ongoing<br />
employees)<br />
• an abbreviated procedure in cases where the employee admits to breaching the Code.<br />
The procedures can be supplemented by more detailed guidance material (along the lines<br />
of the advice provided in this guide) including guidance on setting an appropriate sanction.<br />
The procedures could form an attachment to the guidance material. Suggested procedures<br />
can be found at Appendix 2 to this guide. An option for implementing these procedures<br />
is provided in the flowchart in Figure 1 included at the start of Part 2 of this guide.<br />
Agencies should ensure that the wording of the guidance material avoids words that appear<br />
to be imposing mandatory requirements in addition to those required by the statutory<br />
framework when that is not intended (e.g. using ‘must’).<br />
One significant advantage of having only brief procedures supplemented by more detailed<br />
guidance material is that if a case is challenged (in the <strong>Australian</strong> Industrial Relations<br />
<strong>Commission</strong> (AIRC) or the Federal Court, for example) it is then clear which are the<br />
mandatory procedures that are legally binding, as distinct from other material that has<br />
the status of guidance.<br />
Not all cases of suspected <strong>misconduct</strong> need to be dealt with by a formal investigation to<br />
determine whether a breach of the Code has occurred. Misconduct action is part of a<br />
range of people management practices that agencies should have in place to encourage<br />
high quality performance.<br />
Within the legislative framework agencies have adopted a variety of models for facilitating<br />
the reporting of <strong>misconduct</strong>, protecting whistleblowers and handling <strong>misconduct</strong> and<br />
suspected <strong>misconduct</strong>. The models vary particularly in the degree to which the processes<br />
are centralised or devolved. There is no single model that would suit the circumstances of<br />
all agencies. The material in this guide can be adapted to a range of models.<br />
10 HANDLING MISCONDUCT
Terminology<br />
The PS Act uses specific terminology to describe staffing activities. The terms used in the<br />
booklet have the following meanings:<br />
• ‘assignment of duties’ refers to the action of the agency head in determining the duties<br />
of an employee (section 25)—section 25 also allows an agency head from time to time<br />
to determine the place or places where the duties are to be performed. (A related action<br />
is the ‘reassignment of duties’ which is one of the sanctions available under section 15).<br />
• ‘lower classification’ refers to a classification which is in a lower APS Group in Schedule<br />
1 of the <strong>Public</strong> <strong>Service</strong> Classification Rules 2000 than the one held by the employee.<br />
• ‘<strong>misconduct</strong>’ is a generic term which refers to an action or behaviour by an APS employee<br />
who is determined to have breached the APS Code of Conduct. Prior to such a<br />
determination, the action or behaviour is referred to as suspected <strong>misconduct</strong>.<br />
• ‘<strong>misconduct</strong> action’ refers to those processes, in relation to an individual, an agency carries<br />
out following the agency procedures established under section 15(3) of the PS Act and<br />
Chapter 5 of the <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>er’s Directions 1999.<br />
• ‘movement’ refers to a move of an ongoing employee between agencies (section 26).<br />
• ‘non-ongoing employee’ is an employee who is engaged for either a specified term or<br />
for the duration of a specified task or for duties that are irregular or intermittent as<br />
mentioned in sections 22(2)(b) and (c) of the PS Act.<br />
• ‘ongoing employee’ is an APS employee engaged in accordance with section 22(2)(a)<br />
of the PS Act.<br />
• ‘promotion’ means the ongoing assignment of duties to an ongoing employee at a higher<br />
classification than the one held by the employee (Direction 4.6). A promotion will also<br />
involve a ‘movement’ if the promotion is to another agency.<br />
• ‘sanction’ refers to an action taken by an agency head from a range of possible<br />
sanctions set out in section 15(1) of the PS Act, in response to a finding that an<br />
employee in the agency who is found under the agency procedures to have breached<br />
the APS Code of Conduct.<br />
• ‘section 15(3) procedures’ refer to the procedures established by the agency head in<br />
accordance with section 15(3) of the PS Act for determining whether an APS employee<br />
in the agency has breached the Code. In this guide they may also be referred to as<br />
agency <strong>misconduct</strong> procedures or <strong>misconduct</strong> procedures.<br />
• ‘whistleblowing’ is a generic term which refers to an APS employee making a report of<br />
breaches or alleged breaches of the Code to an authorised person as set out in section<br />
16 of the PS Act.<br />
PART ONE 11
2. OVERVIEW OF THE PROCESS FOR HANDLING MISCONDUCT<br />
APS agencies, their employees and managers all have obligations in relation to dealing<br />
with suspected and proven <strong>misconduct</strong>. Agencies have obligations to provide their employees<br />
with clear guidance and training that covers how employees should conduct themselves<br />
in the workplace including the central role of the Values and the Code. Agencies should<br />
have procedures and processes in place that protect the integrity of the agency and the<br />
APS, identify questionable behaviour and ensure that action is taken to deal with <strong>misconduct</strong>.<br />
APS employees must uphold the Values and comply with the Code. Agency heads and<br />
SES employees have an additional duty to promote the Values.<br />
Misconduct in the APS<br />
Misconduct refers to any action or behaviour by employees which breaches the Values<br />
and the Code. Any such action or behaviours must be referred to as suspected <strong>misconduct</strong><br />
until a decision is made in accordance with established agency procedures that <strong>misconduct</strong><br />
has occurred. The Code is reproduced in Appendix 1.<br />
The Code applies to all APS employees. 4 However, if an employee is serving a period of<br />
probation imposed as a condition of engagement, agencies can choose to handle behavioural<br />
issues within the probationary framework and not by applying the <strong>misconduct</strong> procedures.<br />
Agencies should refer to the <strong>Commission</strong> publication, Conditions of Engagement. 5<br />
In broad terms, an APS employee whose conduct does not comply with an element of<br />
the Code can be found to have breached the Code. Where an element of the Code contains<br />
more than one item, it may not be necessary for the employee to have breached all items<br />
in order for a breach of the Code to be determined to have occurred. In the case, for<br />
example, of section 13(3) of the PS Act, that requires that an employee, when acting in the<br />
course of APS employment, must treat everyone with respect and courtesy, and without harassment,<br />
an employee who was discourteous, but who has not engaged in harassing behaviour,<br />
could be found to have breached the Code.<br />
4<br />
The Code applies to:<br />
• all APS employees (i.e. ongoing and non-ongoing employees and heads of overseas missions). It does not apply to locally<br />
engaged employees in overseas missions. (section 7, section 13, section 39, section 74 of the PS Act)<br />
• all agency heads, including secretaries of departments, heads of executive agencies and heads of statutory agencies (section<br />
14(1) of the PS Act)<br />
• certain statutory office holders (sections 14(2) and (3) of the PS Act and Regulation 2.2).<br />
5<br />
<br />
PART ONE 13
Misconduct can vary from serious (e.g. large scale fraud, theft, misusing clients’ personal<br />
information, sexual harassment and leaking classified documentation) to relatively minor<br />
(for example, a single, uncharacteristic angry outburst or use of the agency email system<br />
to send a low volume of inappropriate but inoffensive non-work related email to friends).<br />
Not all suspected <strong>misconduct</strong> needs to be dealt with by implementing <strong>misconduct</strong> procedures.<br />
With minor <strong>misconduct</strong> or in cases involving personality clashes, other approaches such<br />
as using the performance management system or using alternative forms of dispute resolution<br />
(such as mediation or counselling) may be the most effective way to manage the behaviour.<br />
In all cases, however, it is important that the behaviour be addressed in some way and a<br />
record made of any action taken and the reasons for it. Minor types of <strong>misconduct</strong>, if<br />
unaddressed, may enable repeated inappropriate behaviour or escalate to more serious issues.<br />
Agency-based codes of conduct/expected<br />
behaviours<br />
Many agencies promulgate their own code of conduct or expected behaviours.<br />
When an employee infringes an agency-based code or expected behaviours, the agency<br />
must be able to link the conduct or behaviour in question to a particular element in the<br />
APS Code of Conduct, if it is to form the basis of a <strong>misconduct</strong> action. Given that, it would<br />
be useful to minimise such additional codes and link any provisions of agency-based codes<br />
to the APS Code of Conduct in material that is distributed to employees.<br />
Relationship between <strong>misconduct</strong> and performance<br />
management processes<br />
There are different approaches to determining whether actions and behaviours should be<br />
dealt with under an agency’s <strong>misconduct</strong> or performance management processes. Two<br />
common approaches are:<br />
• using a formal process except for very minor issues, and subsequently determining that<br />
either a reprimand, or no sanction, is appropriate, if the employee’s response to the<br />
<strong>misconduct</strong> action satisfies the sanction delegate that a repetition of the behaviour is<br />
unlikely<br />
• using performance management measures to deal with certain types of <strong>misconduct</strong><br />
(such as one-off incidents of bullying, harassment or rudeness to co-workers, managers<br />
or clients) as they arise.<br />
While it may be appropriate to deal with minor <strong>misconduct</strong> issues in a variety of ways<br />
including through the performance management system, more serious cases of <strong>misconduct</strong><br />
or repeated minor incidents would appropriately be dealt with under <strong>misconduct</strong> procedures.<br />
14 HANDLING MISCONDUCT
Agencies will need to consider each case of unsatisfactory behaviour on its merits to<br />
determine whether it should be best handled through <strong>misconduct</strong> or performance<br />
management procedures.<br />
Care needs to be taken if there is a medical reason for the unsatisfactory behaviour as<br />
many agencies’ performance management processes exclude the application of the process<br />
where there is an apparent medical reason for a perceived failure to perform. Further, in<br />
the employment context it is not discriminatory to expect all employees to abide by a<br />
single conduct standard, regardless of physical or mental capability. 6 As such, the correct<br />
approach in those circumstances is not to have regard to the disability in the course of<br />
determining whether there is a breach, but rather to consider it as a potential mitigating<br />
factor when applying a sanction. This is discussed in Chapter 6 under the heading ‘Factors<br />
to be considered in determining the sanction’).<br />
The connection between work and <strong>misconduct</strong><br />
The various elements of the Code specify three different levels of connectedness between<br />
the standard of conduct and APS employment, as follows:<br />
• ‘in the course of employment’<br />
• ‘in connection with employment’<br />
• ‘at all times’.<br />
The terms ‘in the course of employment’ and ‘in connection with employment’ apply to<br />
actions or behaviour where there is clearly some link to the duties performed by employees.<br />
As a general rule, ‘in the course of employment’ is used in direct association with the<br />
particular conduct expected of APS employees at work, while ‘in connection with<br />
employment’ is usually used to address situations where an employee’s actions may have<br />
some influence on how they perform their duties. The term ‘at all times’ means that conduct<br />
which is apparently unrelated to the performance of duties may be subject to the Code if<br />
it can be demonstrated that there is a real connection between the behaviour and its<br />
effect on the workplace.<br />
There are other elements of the Code where the level of connectedness is not specified.<br />
In these cases, connectedness is inherent in the element itself (e.g. the requirement to<br />
comply with any lawful and reasonable direction given by someone in the employee’s agency<br />
who has authority to give the direction). Managers and employees need to be aware of<br />
these different levels of connectedness to fully understand the standards of conduct required.<br />
Suspected <strong>misconduct</strong> that occurs outside the place of employment is an area which is<br />
influenced by evolving common law.<br />
6<br />
Purvis v NSW and HREOC [2003] HCA 62; (2003) 202 ALR 133.<br />
PART ONE 15
Those elements of the Code applying ‘in the course of APS employment’ (e.g. an APS<br />
employee, when acting in the course of APS employment, must treat everyone with respect and<br />
courtesy, and without harassment) can cover behaviour outside the workplace but in workrelated<br />
contexts, such as work functions (e.g. Christmas parties) and business trips, would<br />
depend on factors such as:<br />
• whether the activity was sponsored or organised by the employer<br />
• where and when the behaviour occurred (e.g. did it occur at the workplace or during<br />
working hours, did a work function have a clear finishing time?)<br />
• whether a person was ‘on duty’ (e.g. acting in a representational capacity).<br />
The term ‘at all times’ used in the element of the Code that requires that an APS employee<br />
must at all times behave in a way that upholds the APS Values and the integrity and good<br />
reputation of the APS (section 13(11)) provides for a broader application to conduct outside<br />
of work hours than other elements of the Code. One example of a possible breach of<br />
section 13(11) could be harassment of one employee by another at a social event involving<br />
work colleagues outside of work (but not an event sponsored or organised by the employer).<br />
Courts and tribunals have provided guidance on what <strong>misconduct</strong> by an employee outside<br />
of work is the legitimate concern of the employer. The AIRC has upheld termination of<br />
employment in circumstances where:<br />
• there was a clear connection between the employee’s out of hours conduct and their<br />
employment and<br />
• the conduct was incompatible with the employee’s duty as an employee or was likely to<br />
cause serious damage to the employment relationship. 7<br />
Misconduct that may also be a criminal act<br />
Agencies can face difficult judgements where <strong>misconduct</strong> proceedings interact with criminal<br />
proceedings, including whether or not to commence <strong>misconduct</strong> proceedings concurrently<br />
with a criminal trial. Criminal proceedings may result from an employee’s behaviour in<br />
the workplace as well as from his or her private actions.<br />
Where an employee’s behaviour may be both a breach of the Code and a criminal offence,<br />
<strong>misconduct</strong> action need not necessarily be delayed until criminal processes have been<br />
completed. 8 Agencies should seek advice from the police and the Director of <strong>Public</strong><br />
Prosecutions before alerting the employee of any allegations of <strong>misconduct</strong>.<br />
7<br />
See for example Cunningham v ABS, Full Bench Decision, PR963720, 10 October 2005 and AGS Legal Briefing No. 80,<br />
Misconduct in the <strong>Australian</strong> <strong>Public</strong> <strong>Service</strong>, 24 October 2006.<br />
8<br />
Baker v <strong>Commission</strong>er AFP (2000) 104 FCR 359; Elliot v APRA [2004] FCA 586; Sullivan v Secretary, Defence [2005] FCA<br />
786. See also discussion in AGS Legal Briefing No. 80.<br />
16 HANDLING MISCONDUCT
A key consideration is the need to avoid prejudicing the criminal process. AGS has advised<br />
that an agency should not proceed with a <strong>misconduct</strong> action if the police or prosecuting<br />
authorities consider the <strong>misconduct</strong> action may prejudice criminal proceedings.<br />
If there is some risk of prejudicing the criminal proceedings, agencies may initiate a<br />
<strong>misconduct</strong> action (putting the employee on notice that an action will ensue) but may<br />
immediately suspend the investigation pending the outcome of criminal proceedings.<br />
The Commonwealth Fraud Control Guidelines 2002 make it clear that agencies must<br />
refer all allegations of serious or complex fraud involving Commonwealth interests to the<br />
<strong>Australian</strong> Federal Police. Agencies should discuss other suspected behaviour that involves<br />
potentially serious criminal conduct with the relevant law enforcement agency.<br />
Criminal offences outside the workplace<br />
The ‘at all times’ behavioural element of the Code may provide one of the bases for<br />
determining whether an employee who has been found guilty of a criminal offence<br />
committed outside the workplace has also breached the Code. In order for a breach to be<br />
found in these cases, it would be necessary to assess whether the criminal behaviour has<br />
compromised the integrity and good reputation of the APS, and the extent to which that<br />
behaviour has adversely affected the employee’s position in the workplace.<br />
Such an assessment should take into account:<br />
• the principle that APS employees are also citizens and like all other employees are<br />
entitled to a private life. In line with this principle, a criminal conviction for drink driving<br />
outside the work place, for example, where the employee was not required to drive a<br />
car as part of their duties is unlikely to be considered a breach of the Code.<br />
• certain criminal charges may have different impacts in different agencies depending on<br />
the nature of the charges and the role of the agency.<br />
In serious criminal cases, it may be appropriate to suspend the employee from duty until<br />
the decision of the Court is known. Suspension in such cases is discussed in Chapter 4.<br />
The process for handling <strong>misconduct</strong><br />
The process for handling <strong>misconduct</strong> can be divided into a number of stages:<br />
• receiving a report of suspected <strong>misconduct</strong><br />
• initial consideration of the report to decide how best to handle the suspected <strong>misconduct</strong><br />
• commencing a <strong>misconduct</strong> action under the <strong>misconduct</strong> procedures and undertaking<br />
an investigation<br />
• deciding whether the <strong>misconduct</strong> has occurred<br />
• imposing the appropriate sanction where necessary.<br />
PART ONE 17
The different steps are discussed in detail in Chapters 3–6 and are illustrated in the flowchart<br />
in Figure 1 (see page 22) which provides an option for implementing the suggested agency<br />
procedures in Appendix 2. Agencies should also refer to the section in Chapter 9, under<br />
the heading ‘Avoiding unnecessary delay’.<br />
Roles and responsibilities in handling <strong>misconduct</strong><br />
The allocation of decision-making tasks associated with reporting and dealing with<br />
<strong>misconduct</strong> must not be inconsistent with the agency <strong>misconduct</strong> procedures and should<br />
be consistent with any associated agency guidance material. The range of different processes<br />
would include:<br />
• an investigator with no decision-making function who prepares a brief for a decision<br />
maker who may or may not have the delegation to impose a sanction<br />
• the decision maker conducts the investigation unsupported, determines a breach and<br />
exercises the sanction delegation<br />
• the decision maker conducts the investigation unsupported, determines a breach and<br />
makes recommendations to a separate sanction delegate<br />
• briefing an external investigator to determine a breach and make recommendations as<br />
to the appropriate sanction. The external investigator needs to be authorised to make<br />
such a determination in line with the agency’s procedures.<br />
Whatever approach is adopted, the associated guidance material should be clear about<br />
respective roles and responsibilities and that quality control mechanisms are built in.<br />
There are a number of decisions that will be required in handling <strong>misconduct</strong> including:<br />
• the initial decision on how to handle the report of suspected <strong>misconduct</strong> (i.e. whether<br />
to take action under the agency’s <strong>misconduct</strong> procedures or not)<br />
• deciding whether to suspend an employee and any review of that decision<br />
• deciding whether there has been <strong>misconduct</strong><br />
• imposing a sanction.<br />
Agencies need to consider whether the decision as to whether <strong>misconduct</strong> has taken place<br />
and the decision relating to imposing a sanction are to be made by the same person or<br />
whether to have separate decision makers. Even where it is permissible to have one decision<br />
maker for both tasks, it can (in some cases) be desirable to have different decision makers<br />
in order to avoid any bias issues. It is also generally desirable that the suspension delegate<br />
be a different person from the decision maker or delegate in relation to determining<br />
<strong>misconduct</strong> and/or the sanction.<br />
Agencies must ensure that all people with responsibility for decision-making in handling<br />
a <strong>misconduct</strong> action have the appropriate authority to make that decision and that they<br />
both are, and are perceived as, independent and free of bias.<br />
18 HANDLING MISCONDUCT
The rights of the employee suspected of <strong>misconduct</strong><br />
It is useful for guidance material to set out clearly the rights of the employee who is<br />
being investigated in relation to a suspected breach of the Code both for their information<br />
but also as a reminder to decision makers and other agency employees. At the minimum:<br />
• The identity of the employee who has been accused of <strong>misconduct</strong> (and the detail of<br />
the allegations) should be kept confidential as far as possible and managed on a ‘need<br />
to know’ basis, consistent with the requirements of the Privacy Act 1988.<br />
• Employees of the agency must not make statements that presume the ‘guilt’ or otherwise<br />
of the accused employee.<br />
• The investigation into a report of suspected <strong>misconduct</strong> should be handled in a timely,<br />
systematic and effective manner and be consistent with procedural fairness requirements.<br />
• Appropriate recordkeeping should be observed including disposal of <strong>misconduct</strong> records<br />
in accordance with agency procedures. Recordkeeping requirements and access to<br />
information are discussed in Chapter 7.<br />
Agencies should note that, although an employee is generally bound to answer fair and<br />
reasonable questions relating to their activities as an APS employee, an employee suspected<br />
of <strong>misconduct</strong> cannot be lawfully directed to answer questions relating to the matter where<br />
this would tend to incriminate them. The PS Act framework, including the duty to obey<br />
lawful and reasonable directions, does not remove the common law privilege against selfincrimination.<br />
9<br />
Key points for agency guidance material<br />
Agency guidance material could include information drawn from this chapter on the<br />
following:<br />
• an employee’s responsibility to uphold the Values and the Code<br />
• what constitutes <strong>misconduct</strong> illustrated by agency specific examples within and outside<br />
of the workplace<br />
• the relationship between any agency-based codes and the APS Code<br />
• the preferred approach to the interaction between managing <strong>misconduct</strong> and<br />
underperformance within the agency<br />
• the rights of an employee who is being investigated in relation to a suspected breach of<br />
the Code<br />
• links to agency material/training on the Code available to employees and links to relevant<br />
APS <strong>Commission</strong> material if relevant (e.g. APS Values and Code of Conduct in Practice: a<br />
guide to official conduct for APS employees and agency heads). 10<br />
9<br />
Legal Briefing No 80, Misconduct in the <strong>Australian</strong> <strong>Public</strong> <strong>Service</strong>, 24 October 2006.<br />
10<br />
<br />
PART ONE 19
MAIN STEPS IN HANDLING MISCONDUCT<br />
PART 2
Figure 1: An option for implementing the suggested agency procedures<br />
in Appendix B<br />
A manager suspects that an employee may have breached the Code of Conduct<br />
Consider options other than the formal process for handling <strong>misconduct</strong><br />
Consider suspension or temporary re-assignment of duties at this stage<br />
—see the Suspension Checklist<br />
If the breach may also be a criminal offence consider referral to the Police<br />
Legislative<br />
reference<br />
Agency<br />
procedures<br />
Agency<br />
procedures<br />
The manager, with guidance from the<br />
HR Manager, determines that formal<br />
<strong>misconduct</strong> action will proceed<br />
The manager, with guidance from the HR<br />
Manager, determines that the matter can<br />
be dealt with informally<br />
In accordance<br />
with Agency<br />
procedures<br />
The agency head (or person nominated by the agency head) selects a person who is<br />
(and is seen to be) both independent and unbiased to determine whether the employee has<br />
breached the Code of Conduct<br />
The employee is informed (in writing) of BOTH details of the suspected breach(es) AND the<br />
sanctions that may be imposed<br />
The employee is given a reasonable opportunity to make a statement<br />
The selected person investigates the matter to determine whether the employee has<br />
breached the Code of Conduct*<br />
<strong>Commission</strong>er’s<br />
Direction 5.4<br />
<strong>Commission</strong>er’s<br />
Direction 5.2<br />
<strong>Commission</strong>er’s<br />
Direction 5.2<br />
<strong>Commission</strong>er’s<br />
Direction 5.3<br />
Where the employee is found to have<br />
breached the Code of Conduct<br />
Written record of the determination, and<br />
the reasons for it, made<br />
The employee is given an opportunity to<br />
comment on the proposed sanction<br />
Where the employee is found to have<br />
not breached the Code of Conduct<br />
Written record of the determination<br />
made, a copy given to the employee<br />
The <strong>misconduct</strong> action ends<br />
<strong>Commission</strong>er’s<br />
Direction 5.5<br />
The agency head may impose a sanction of:<br />
• reprimand<br />
• deduction from salary<br />
• reduction in salary<br />
• re-assignment of duties<br />
• reduction in classification<br />
• termination of employment<br />
The employee is advised, in writing, of:<br />
• the determination and reason for it, and<br />
• rights of the review<br />
The sanction takes effect<br />
The Misconduct action ends. The<br />
employee may exercise rights of review<br />
Agency head may take administrative<br />
action—e.g. the manager may counsel<br />
or warn the employee and keep a written<br />
record of any such action<br />
*The selected person may decide not to<br />
proceed to the making of a determination<br />
PS Act<br />
Section 15 and<br />
PS Regulation<br />
2.3<br />
Workplace<br />
Relations Act or<br />
PS Regulation<br />
5.24<br />
22 HANDLING MISCONDUCT
3. REPORTING SUSPECTED MISCONDUCT<br />
Agencies need to be proactive in providing and promoting mechanisms for the reporting<br />
by the public and employees of suspected <strong>misconduct</strong>. Internal reporting of suspected<br />
<strong>misconduct</strong> is vital to the integrity of the APS.<br />
It is good practice for agencies to have more than one way for their employees to report<br />
suspected <strong>misconduct</strong> and that these various options are promoted to employees. Options<br />
can include:<br />
• central conduct or ethics units<br />
• employee advice or counselling units<br />
• fraud prevention and control units and hotlines<br />
• other hotlines<br />
• email reporting addresses<br />
• the identification of authorised people to receive reports (such as the agency head or<br />
the head of corporate management group).<br />
If agencies make use of several methods it would be good practice for agencies to draw<br />
together the relevant data so that they can properly monitor overall trends or issues. This<br />
is discussed in more detail in Chapter 9, Quality Assurance and Streamlining the Process.<br />
Guidance on reporting <strong>misconduct</strong> could be a separate document or included as a section<br />
in broader guidance material that covers both reporting and dealing with <strong>misconduct</strong>.<br />
Provisions should be made for anonymous reports, although employees should be encouraged<br />
to come forward to make reports wherever possible as this can assist with successful<br />
investigation of the report. An anonymous report is problematic as there is no way of<br />
verifying the allegation and it can be used vexatiously. Assurances and clear policies about<br />
protecting reporting employees from victimisation and discrimination can assist in this<br />
regard. Employees also need to be advised that <strong>misconduct</strong> action may be taken against<br />
an employee who makes a frivolous or vexatious report of suspected <strong>misconduct</strong>.<br />
PART TWO 23
Supervisors and managers must report behaviour that they suspect breaches the Code by<br />
an employee for whom they have supervisory responsibility.<br />
Managers also have an important role in encouraging and supporting staff who are<br />
considering reporting suspected <strong>misconduct</strong>. Research has indicated that it is often managers’<br />
handling of their workplace, as much as formal legislative and organisational systems, that<br />
determine whether conscientious staff speak-up. 11 Agencies should undertake periodic<br />
training and awareness raising activities so that their employees and managers understand<br />
their responsibilities, and the relevant agency processes, in reporting and dealing with<br />
<strong>misconduct</strong>.<br />
Investment in training and awareness raising activities pays off. 12 Agencies that make large<br />
investments have:<br />
• larger proportions of staff who indicate that their agency has made them aware that they<br />
can report a serious breach of the Code to an authorised person and<br />
• lower proportions of staff stating that they would not be willing to report serious<br />
<strong>misconduct</strong> because of fears of victimisation compared to agencies with smaller levels<br />
of investment.<br />
Whistleblowing provisions and reporting of<br />
<strong>misconduct</strong><br />
The PS Act has provisions (section 16) that provide protection for employees who make<br />
whistleblower reports of suspected <strong>misconduct</strong>. Employees who report a suspected breach<br />
of the Code to a person authorised to receive the report (an agency head, the <strong>Public</strong> <strong>Service</strong><br />
<strong>Commission</strong>er or the Merit Protection <strong>Commission</strong>er, or persons that they authorise)<br />
must not be victimised, or discriminated against because they made such a report. The<br />
Regulations (regulation 2.4) provide a framework for agencies to develop processes for<br />
dealing with whistleblowing reports.<br />
In many people’s minds the term ‘whistleblower’ is linked with public exposure of wrongdoing<br />
and/or leaking to the media, and is usually only associated with alleged <strong>misconduct</strong><br />
by senior people in an organisation.<br />
However, any employee who reports <strong>misconduct</strong> orally or otherwise to an ‘authorised<br />
person’ is in fact making a whistleblower report under section 16 and is entitled to the<br />
protections and rights under section 16 and the Regulations regardless of whether they identify<br />
their disclosure as a whistleblower report, or realise that it is a whistleblower report. Employees<br />
should be aware that any report can be considered to be a potential whistleblower report<br />
once the allegation has been made as the reporting employee has no control over how the<br />
report of suspected <strong>misconduct</strong> will be handled within the agency.<br />
11<br />
Crime and Misconduct <strong>Commission</strong> (2004) Speaking Up—Creating Positive Reporting Climates in the Queensland <strong>Public</strong> Sector,<br />
Building Capacity Series, No. 6 page 2.<br />
12<br />
<strong>Australian</strong> <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>, State of the <strong>Service</strong> Report 2003–04, Chapter 6, Personal Behaviour.<br />
24 HANDLING MISCONDUCT
Such an approach would mean that:<br />
• the findings into an investigation of a report of suspected <strong>misconduct</strong> would be dealt<br />
with as soon as practicable<br />
• employees would be provided with information about their rights to be protected from<br />
victimisation or discrimination<br />
• agencies would take a proactive approach to ensuring the protection of employees<br />
reporting suspected <strong>misconduct</strong> from victimisation and harassment.<br />
Agencies would let the reporting employee know what has been decided in terms of further<br />
action in relation to their report. Such an approach would need to be mindful of privacy<br />
considerations, but could help to address any concern employees might have that action<br />
is not taken on complaints within an agency.<br />
Many agencies currently have nominated a wide range of people as authorised to receive<br />
whistleblower reports in their whistleblower processes. Agencies may wish to consider<br />
reducing the number of authorised people to a more limited number of staff so that making<br />
a whistleblower report is a choice that is consciously made by employees.<br />
Agency guidance material needs to be clear about:<br />
• who has the authority to receive whistleblower reports (Regulation 2.4(2)(b))<br />
• who has the authority to investigate such reports (Regulation 2.4(2)(d)(ii))<br />
• who has the authority to decide on the basis of the outcome of the investigation whether<br />
a <strong>misconduct</strong> action is warranted.<br />
Records of the process and decision should also be kept consistent with the Archives Act<br />
1983 which is discussed in Chapter 7.<br />
Encouragement to report <strong>misconduct</strong><br />
There is no general common law duty to report a fellow employee’s <strong>misconduct</strong> although<br />
it can arise as part of the general duty of fidelity and good faith in certain circumstances.<br />
In the APS, employees have special obligations by virtue of the Values and Code and by<br />
being a public servant.<br />
The Values and the Code establish that:<br />
• the APS has the highest ethical standards (Value 10(1)(d))<br />
• an APS employee must behave honestly and with integrity in the course of APS<br />
employment (section (13)(1) of the Code)<br />
• an APS employee must at all times behave in a way that upholds the Values and the<br />
integrity and good reputation of the APS (section 13(11) of the Code).<br />
PART TWO 25
The <strong>Commission</strong>er’s Directions are also relevant. Direction 2.5(1) requires agency heads<br />
to do certain things to uphold the Values, including that they put in place measures to<br />
ensure that employees are encouraged to make whistleblowing disclosures in appropriate<br />
circumstances, and that managers are aware of the importance of modelling and promoting<br />
the highest standard of ethical behaviour. This latter aspect is further developed by Direction<br />
2.5(2) which requires an APS employee, taking into account their duties and responsibilities,<br />
to model and promote the highest standard of ethical behaviour.<br />
As such, the <strong>Commission</strong> considers that the duty to act with integrity and with the highest<br />
ethical standards imposes a reporting obligation on all employees with regard to suspected<br />
<strong>misconduct</strong>. In some circumstances, particularly for employees with managerial responsibilities,<br />
it could be a breach of the Code for an employee not to report suspected <strong>misconduct</strong>.<br />
An employee’s duty is to be both accountable against formal standards and reporting<br />
requirements, and to be personally accountable for internalising acceptable behaviours,<br />
which includes the daily application of the Values. Within this context, agencies should<br />
promote the concept of duty, which would include reporting suspected <strong>misconduct</strong>.<br />
Employees reporting or witnessing <strong>misconduct</strong>—<br />
protection from retribution<br />
Some employees may have concerns regarding reporting other employees for <strong>misconduct</strong><br />
and possible victimisation or discrimination, especially if the suspected <strong>misconduct</strong> involves<br />
close colleagues and/or more senior employees.<br />
Agencies are required to protect employees who make formal reports of suspected <strong>misconduct</strong><br />
to authorised persons from any retribution such as victimisation or discrimination (section<br />
16). Employees making reports of suspected <strong>misconduct</strong> in other ways, however, are also<br />
protected—section 13(3) of the Code requires APS employees to treat everyone with<br />
respect and courtesy, and without harassment. These protections would also extend to<br />
witnesses in <strong>misconduct</strong> cases if there is a possibility of retribution towards them.<br />
The identity of employees who report <strong>misconduct</strong> or who provide witness statements<br />
should be kept confidential as far as the law allows. In some cases, where the identity of<br />
the person reporting the <strong>misconduct</strong> is a key part of the accused employee ‘knowing the<br />
case against them’ the identity of the reporting employee may need to be disclosed. Before<br />
this is done, however, the reporting employee should be advised of the disclosure and<br />
encouraged to report any behaviours that they regard as retaliatory.<br />
If the allegation is referred to another office or agency such as the police, the Commonwealth<br />
Director of Prosecutions or the <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>er or Merit Protection<br />
<strong>Commission</strong>er, agencies should stress their desire to preserve the confidentiality of the<br />
sources of information in relation to the <strong>misconduct</strong> to the maximum degree possible.<br />
26 HANDLING MISCONDUCT
Employees need to be aware, however, that if they are a key witness in a contested<br />
prosecution it is likely that their identity will become a matter of public record. Should<br />
another office take over the investigation, the agency should continue to actively protect<br />
the employee who has made the report or employees who have made witness statements<br />
from retaliation.<br />
Agencies should consider the circumstances of each report of suspected <strong>misconduct</strong> to<br />
determine if a formal assessment of the possibility of retribution is necessary. On the<br />
basis of this assessment, protective mechanisms, if required, should be put in place. These<br />
mechanisms may include but are not limited to:<br />
• directing employees who are suspected of <strong>misconduct</strong> not to enter into any discussion<br />
about the incident/s with the employee reporting the <strong>misconduct</strong> or other witnesses<br />
• directing the manager of the employee to take active steps to promote a workplace<br />
culture which recognises the importance of encouraging employees to report suspected<br />
<strong>misconduct</strong><br />
• arranging for the suspected employee to be temporarily assigned duties in another<br />
location (ensuring that there is no presumption of prejudging the case)<br />
• ensuring that any employee making a witness statement in a <strong>misconduct</strong> case is aware<br />
that they are entitled to whistleblower protection and may request a risk assessment<br />
• where a risk assessment supports it, the reporting employee or witness can be assigned<br />
other duties for which they are qualified in another location<br />
• making special provision to ensure the fairness of any selection process involving the<br />
employees at risk of victimisation or discrimination by, for example, appointing an<br />
independent member to the selection committee<br />
• developing and implementing a specially tailored protection plan in circumstances where<br />
there is a real risk to the physical security of employees, their families or property.<br />
Key points for agency guidance material<br />
Agency guidance material could include information, some of which can be drawn from<br />
this chapter, on the following:<br />
• encouragement to employees to report suspected <strong>misconduct</strong> as part of their duty as an<br />
APS employee<br />
• the different options available to employees to report <strong>misconduct</strong><br />
• the protections available to employees who report <strong>misconduct</strong><br />
• how to treat or collect any evidence prior to reporting. While this is not discussed in<br />
this guide, it could include advice that employees:<br />
– make notes on what they have seen or heard<br />
– provide written records on any action the employee has taken<br />
– keep any relevant documents and not make any written annotations on them<br />
– report the matter but otherwise keep the matter confidential.<br />
PART TWO 27
4. CONSIDERING A REPORT OF SUSPECTED MISCONDUCT<br />
Agencies need to have procedures in place for considering reports of suspected <strong>misconduct</strong>.<br />
The initial decision on what approach to take to deal with suspected <strong>misconduct</strong> when<br />
reported is a key one.<br />
Often it will be the supervisor/manager of the employee suspected of <strong>misconduct</strong> that, in<br />
the first instance, makes an assessment of the seriousness of the <strong>misconduct</strong> and the best<br />
approach to take to dealing with it. This is because the <strong>misconduct</strong> may have been observed<br />
by the manager themselves or another employee may have reported it to them—for example,<br />
a report by an employee about their supervisor or another employee. If the <strong>misconduct</strong> has<br />
been reported by another employee, that employee needs to be advised about how their<br />
report will be handled and their rights to protection from any victimisation or harassment.<br />
As discussed in this chapter, not all suspected <strong>misconduct</strong> is best dealt with via the agency’s<br />
<strong>misconduct</strong> procedures. In less serious cases, for example, or in some cases involving<br />
personality clashes, other approaches such as using the performance management system<br />
or conciliation may be the most effective first option. Where appropriate, using other<br />
procedures can often resolve problems more quickly and effectively than by applying the<br />
<strong>misconduct</strong> procedures. This is discussed in Chapter 9 under the heading ‘Avoiding<br />
unnecessary delay’.<br />
Consistency of approach<br />
Whatever approach the agency takes with regard to the various types of <strong>misconduct</strong> it<br />
must be broadly consistent across the agency, so that employees are given consistent<br />
messages about the agency’s views on various types of <strong>misconduct</strong>. It is reasonable for<br />
employees in an agency to expect that the standards of behaviour required in each individual<br />
workplace will be essentially the same. There will be different approaches to some types<br />
of <strong>misconduct</strong> between APS agencies, however, because of the nature of their business<br />
and the greater risks posed by some types of conduct. In addition, section 15(3) of the PS<br />
Act makes provision for an agency head to establish different procedures for different<br />
categories of employees.<br />
PART TWO 29
A common reason why inconsistent approaches to certain types of <strong>misconduct</strong> arise within<br />
an agency is that not all managers are fully aware of the agency’s views on the seriousness<br />
of certain types of apparent <strong>misconduct</strong>, or of who has the authority to make decisions<br />
on how to deal with various types of <strong>misconduct</strong>.<br />
One of the most effective ways of helping managers make consistent and appropriate<br />
decisions is to provide more detailed guidance about the factors to take into account in<br />
making the decision of whether to deal with the suspected <strong>misconduct</strong> through the agency<br />
<strong>misconduct</strong> procedures, or alternate methods. The use of practical examples that are meaningful<br />
in the context of the agency’s business is a powerful tool and strongly recommended.<br />
Another way of helping to ensure consistency is to make it clear in guidance material what<br />
level of manager is authorised to make a decision about how certain types of <strong>misconduct</strong><br />
are dealt with.<br />
Suspected <strong>misconduct</strong> where <strong>misconduct</strong> procedures may<br />
be appropriate<br />
In considering whether or not to use the <strong>misconduct</strong> procedures, agencies should examine<br />
the nature of the suspected <strong>misconduct</strong>. As a general rule, agencies should use the <strong>misconduct</strong><br />
procedures if it is likely that they would impose a sanction (either termination of employment,<br />
reduction in classification, re-assignment of duties, reduction in salary, a fine or a reprimand),<br />
if the suspected <strong>misconduct</strong> was determined to be a breach of the Code.<br />
Whether to start a <strong>misconduct</strong> action<br />
An issue that arises in the decision of whether to commence <strong>misconduct</strong> procedures is<br />
when to commence <strong>misconduct</strong> procedures.<br />
Different issues of <strong>misconduct</strong> often raise greater or lesser difficulties in gathering initial<br />
evidence to assess whether there is a prima facie case. Matters become complicated if key<br />
employees are geographically dispersed or temporarily unavailable. To avoid or minimise<br />
the prospect of the employee destroying or removing evidence, some agencies may decide<br />
that information gathering should be completed as far as reasonably practicable before<br />
the employee is advised that they may be under any suspicion.<br />
Agencies should aim to keep the preliminary investigative phase as short as possible<br />
without compromising the quality of the work undertaken. Agencies should seek to avoid<br />
duplicating the formal investigation prior to deciding whether to notify the employee that<br />
they were suspected of <strong>misconduct</strong>. Advising employees earlier rather than later can also<br />
help to avoid the undesirable situation of the employee finding out through unofficial<br />
sources that an initial investigation is underway. Timeliness is discussed in more detail in<br />
Chapter 9 under the heading ‘Avoiding unnecessary delay’.<br />
30 HANDLING MISCONDUCT
In serious cases where any delay in acting raises a real risk that the safety of employees or<br />
clients may be compromised or evidence may be destroyed, it is appropriate to decide to<br />
commence <strong>misconduct</strong> proceedings as quickly as possible. Prompt consideration should<br />
also be given to suspending the employee from duty or assigning them to other duties.<br />
This is discussed later in this chapter.<br />
How the evidence is assessed, or whether further evidence is sought, will be up to the<br />
discretion of the employee authorised to make the decision about whether to commence<br />
<strong>misconduct</strong> procedures but that decision maker must keep in mind that an investigation<br />
has not yet commenced. The test to apply in deciding whether to institute a Code investigation<br />
is not whether the evidence establishes that a breach of the Code has probably occurred, but<br />
rather whether the allegations are sufficiently substantial as to warrant further investigation.<br />
Alternatives for addressing conduct-related<br />
concerns<br />
Once the decision has been made that it is not appropriate to handle the suspected<br />
<strong>misconduct</strong> through the agency procedures, managers have a number of alternative options:<br />
• deal with the conduct through the agency’s performance management system if<br />
appropriate, including specifying the standard of future conduct required<br />
• improve the employee’s awareness of required standards of conduct such as by access to<br />
training<br />
• close monitoring of, and advice/assistance on, future conduct<br />
• provide appropriate counselling<br />
• consider assigning new duties—however, care must be taken to ensure that this is not<br />
perceived as a de facto sanction imposed without a proper process<br />
• for conduct involving interpersonal issues, alternative dispute resolution approaches<br />
such as mediation or conciliation.<br />
Records of employee discussions<br />
Where managers/supervisors take one of the alternative approaches set out above, it is<br />
advisable that the key discussions and outcomes be documented. A short note should be<br />
prepared recording the content of the meeting, particularly where agreement is reached<br />
on any conduct and the remedial action, if any, to be taken. The note should preferably be<br />
signed by both the employee and the manager/supervisor, with copies being retained by<br />
both parties. The agency copy should be retained in accordance with agency policy. Notes<br />
concerning any follow-up discussions/counselling should also be prepared, agreed and<br />
retained.<br />
PART TWO 31
The employee should be informed that where an employee’s conduct is maintained at a<br />
satisfactory level, the records relating to counselling or other action will be destroyed in<br />
accordance with agency policies and that the records will only be relied on if further<br />
allegations of <strong>misconduct</strong> arise during the document retention period specified in the<br />
agency policy.<br />
What to do if conduct does not improve or deteriorates<br />
Where alternative action does not satisfactorily resolve concerns about an employee’s<br />
conduct, and/or a further suspected breach occurs, careful consideration should be given<br />
to whether the <strong>misconduct</strong> procedures should be applied on the basis that a repeating or<br />
continuous pattern of suspected <strong>misconduct</strong> has developed, albeit that the initial incident(s)<br />
were relatively minor or did not warrant action under the <strong>misconduct</strong> procedures.<br />
Deciding whether to reassign duties or suspend<br />
Action to temporarily re-assign duties, or to suspend, may be taken at any time prior to,<br />
or during, the process of determining whether a breach of the Code has occurred and<br />
applying a sanction. Generally, given the nature of the decision, it will be made at much<br />
the same time as the decision to commence <strong>misconduct</strong> procedures. If a decision to assign<br />
other duties or suspend is made later during the process, it would normally be linked to a<br />
further development (e.g. a repeat of the <strong>misconduct</strong>) or if substantial new allegations<br />
came to light during the investigation.<br />
In exercising these powers, it is important for the decision maker not to prejudge, and not<br />
to be seen to prejudge, whether <strong>misconduct</strong> has occurred. Reassignment or suspension are<br />
not to be used as sanctions.<br />
It is important that agencies determine which employees may make the decisions regarding<br />
reassignment or suspension. Whoever is given the authority to make these decisions must<br />
be given delegated authority to do so (section 78(7) of the PS Act, regulation 3.10). A<br />
checklist for managing the suspension of employees is included in Appendix 3.<br />
Re-assignment of other duties<br />
As an alternative to suspension, the agency may decide that it is more appropriate to<br />
temporarily re-assign the employee’s duties, particularly since at this stage <strong>misconduct</strong> is<br />
only suspected. 13 The power to do so is the general assignment of duties power in the PS<br />
Act (section 25).<br />
13<br />
Agencies may wish to refer to Department of Employment and Workplace Relations v Oakley, PR954267 and PR954267. This<br />
AIRC decision is significant in that the Full Bench held that it was appropriate and reasonable to delay taking Code action<br />
so as not to prejudice criminal proceedings about the same matter, and that the decision to place the employee on alternative,<br />
restricted duties was appropriate and, in that case, preferable to suspension from duty.<br />
32 HANDLING MISCONDUCT
The factors to take into account are similar to the factors relating to whether or not to<br />
suspend the employee—that is, the public and the agency’s interests. The maintenance of<br />
a cohesive and effective workplace is a relevant consideration in relation to the reassignment<br />
of duties. It may also be appropriate to have regard to the circumstances of the affected<br />
employee and in some cases the circumstances of their family (e.g. should relocation to<br />
another region be involved).<br />
In order to ensure that all relevant facts are to hand before making a decision on reassignment, it<br />
is good practice to notify the employee of the proposal and invite comment before making<br />
a decision. Sometimes the situation will not allow for that opportunity, in which case the<br />
employee should be invited to comment on the reassignment and if necessary, a different<br />
arrangement (including suspension from duty) can be contemplated.<br />
Employees who are assigned to different duties as an alternative to suspension from duty<br />
are not entitled to seek review of the reassignment decision under section 33 of the PS<br />
Act unless the reassignment involves a reduction in classification, relocation to another<br />
place, or being assigned duties that the employee cannot reasonably be expected to perform.<br />
Legislative framework for suspension<br />
Section 28 of the PS Act and regulation 3.10 set out the legislative basis for suspending<br />
an employee who is suspected of having breached the Code. In brief, the provisions are as<br />
follows:<br />
• an employee may be suspended, with or without remuneration, where the agency head<br />
believes, on reasonable grounds, that the employee has, or may have, breached the<br />
Code and where the suspension is in the public interest, or the agency’s interest<br />
(regulation 3.10(1), (2), (3))<br />
• where the suspension is without remuneration, the maximum period is generally to be<br />
no more than 30 days. A longer period of suspension without remuneration is permitted<br />
only where there are exceptional circumstances (regulation 3.10(3))<br />
• continuing suspension must be reviewed at reasonable intervals (regulation 3.10(4))<br />
• suspension must end immediately when the agency head no longer believes, on reasonable<br />
grounds, that:<br />
– the employee has, or may have, breached the Code, or<br />
– that it is in the public interest, or the agency’s interest, to continue the suspension<br />
(regulation 3.10(5)).<br />
• suspension must cease as soon as any sanction is imposed for the relevant breach of the<br />
Code (regulation 3.10(6))<br />
• in exercising suspension powers, the agency head must have due regard to procedural<br />
fairness, unless on reasonable grounds, they believe that it would not be appropriate to<br />
do so in the particular circumstances (regulation 3.10(7)).<br />
PART TWO 33
In what circumstances should employees be suspended?<br />
The starting point for considering whether to suspend an employee is the public interest<br />
and the agency’s interest.<br />
<strong>Public</strong> interest considerations might operate in favour of suspension from duty where the<br />
alleged conduct poses a risk to:<br />
• the safety of members of the public (including agency customers or clients)<br />
• the integrity of data about members of the public held by the agency<br />
• the public revenue<br />
• the confidence of the public in the APS as a whole.<br />
An agency may choose suspension from duty where:<br />
• there is a risk that an investigation of the allegation may be compromised by the employee’s<br />
presence in the workplace<br />
• there is a risk that the suspected <strong>misconduct</strong> may be repeated<br />
• the allegations may have impaired the public’s confidence in the agency’s capacity to<br />
perform its functions<br />
• there is a risk to the safety of other employees<br />
• it would be inappropriate for the employee to continue to perform their usual duties<br />
until the allegations are resolved, and assignment of other duties is not appropriate or<br />
cannot be accommodated.<br />
Procedural fairness<br />
The usual practice is to inform, in writing, the employee suspected of <strong>misconduct</strong>, of the<br />
agency’s intention to suspend them and the reasons for this proposal, and to give the<br />
employee a reasonable opportunity to respond before the decision is taken. In some<br />
circumstances it may be appropriate for the suspension to immediately come into effect<br />
without first inviting the employee to comment. For example, where there is an imminent<br />
serious threat to the safety of other employees if suspension were to be delayed, or where<br />
there is a real possibility that the employee will destroy or otherwise tamper with evidence.<br />
Even where the suspension immediately comes into effect, the accused employee should<br />
be advised of the reasons for this decision and notified that the suspension will be<br />
immediately reviewed once the employee has had a reasonable opportunity to respond.<br />
The letter should make clear that the decision to suspend the employee is not a prejudgement<br />
of whether the employee has committed a breach of the Code.<br />
If an employee provides information or arguments that have a bearing on whether they<br />
should be suspended from duty, then the agency head or delegate should take that material<br />
into account when deciding whether to suspend the employee, or in the course of reviewing<br />
a suspension.<br />
34 HANDLING MISCONDUCT
Remuneration<br />
The agency head or delegate is able to decide whether a suspension is with or without<br />
remuneration. 14<br />
Factors to be considered in making this decision might include:<br />
• the seriousness of the suspected <strong>misconduct</strong>—suspension without remuneration would<br />
usually be appropriate in cases of suspected <strong>misconduct</strong> where the sanction imposed<br />
might be termination of employment if the suspected <strong>misconduct</strong> was determined to<br />
be a breach of the Code<br />
• obligations under the Financial Management and Accountability Act 1997—should<br />
someone who is not working still be remunerated?<br />
• whether suspension without remuneration would give the employee an added incentive<br />
to cooperate with the investigation<br />
• the estimated duration of the <strong>misconduct</strong> action.<br />
In considering suspension with or without remuneration, procedural fairness considerations<br />
apply and the accused employee should be advised of the reasons for any proposed decision<br />
and given a reasonable opportunity to respond.<br />
If an employee provides information or arguments that have a bearing on whether they<br />
should be suspended from duty with or without remuneration, then the agency head or<br />
delegate should take that material into account when deciding whether to suspend the<br />
employee with or without remuneration, or in the course of reviewing a suspension.<br />
Under both the common law and the Administrative Decisions ( Judicial Review) Act 1977<br />
a decision maker (that is, an agency head or delegate) is required to take into account all<br />
relevant considerations and must not rely on irrelevant considerations in reaching the<br />
decision. For example, where a decision maker is having regard to whether the issue of<br />
hardship would be a relevant consideration, hardship would generally be a relevant<br />
consideration. This is supported by the fact that an agency head has discretion whether to<br />
make a suspension with or without pay. This discretion means that an agency head can<br />
balance the severity of the breach against the severity of the suspension. In certain<br />
circumstances the hardship imposed may well be disproportionate to the breach. On the<br />
other hand, a breach may be so serious that an agency head may attach little weight to<br />
the issue of hardship when reaching the decision.<br />
14<br />
The term remuneration includes:<br />
• annual salary (excluding performance-based allowances) that would have been paid to the employee for the period they would<br />
otherwise have been on duty including any approved higher duties allowances, and other salary related payments including<br />
those associated with the performance of extra duties (overtime but excluding overtime meal allowance) and shifts (shift<br />
penalty payments) where there is a longstanding and regular pattern of extra duty or shift work being performed which would<br />
have been expected to continue but for the suspension from duty<br />
• any other allowances of a regular or on-going nature (e.g. including cost reimbursement allowances such as a temporary accommodation<br />
allowance).<br />
PART TWO 35
In relation to the extent to which an employee needs to demonstrate hardship, it would<br />
be in the interests of an employee to demonstrate it as fully as possible, for example, the<br />
onus is on the employee to substantiate their claim for hardship, by providing as much<br />
evidence as possible in support of their case. If the employee did nothing more than merely<br />
assert hardship, then an agency head may not attach much weight to that consideration<br />
when reaching his or her decision. For procedural fairness, it might be worthwhile<br />
requesting further information about the nature of the hardship. For example, where an<br />
employee claims that their bank would take possession of their house, then the decision<br />
maker might seek a statement to this effect from their bank and/or a signed statutory<br />
declaration from the employee and subsequently might attach greater weight to that<br />
consideration in reaching the decision.<br />
As suspension without remuneration should not normally extend beyond 30 days, the<br />
<strong>misconduct</strong> action in such cases should be completed as quickly as possible, consistent<br />
with a proper consideration of the issues.<br />
A period of suspension without remuneration longer than 30 days is permitted only<br />
where there are exceptional circumstances. Exceptional circumstances are not defined in<br />
the legislation, 15 but could include:<br />
• where a strong prima facie case of serious <strong>misconduct</strong> is apparent<br />
• where a finding has been made of a serious breach of the Code and a sanction is yet to<br />
be imposed—any delay between a determination and imposing a sanction should be<br />
minimised<br />
• where an employee has been charged with a criminal offence and is waiting to have the<br />
charge heard and determined<br />
• where an employee has appealed against a conviction and is waiting to have the appeal<br />
heard.<br />
An employee who is not receiving remuneration may be able to access paid leave credits<br />
during suspension—this is up to the discretion of the agency although it may depend on<br />
the provisions of the agency’s Collective Agreement or the employee’s <strong>Australian</strong> Workplace<br />
Agreement. Some agencies allow suspended employees to access accrued recreation or long<br />
service leave credits, but not personal or carer’s leave. The rationale for drawing this<br />
distinction is that personal and carer’s leave are generally available where an employee is<br />
prevented by virtue of illness or caring responsibilities from attending for duty. Where an<br />
employee is suspended from duty they are not obliged to attend for work and therefore<br />
illness or caring responsibilities do not prevent them from doing so.<br />
15<br />
Considering the phrase in the context of a different Act, the Full Federal Court said that ‘exceptional circumstances’ means<br />
‘unusual or out of the ordinary’: Oreb v Willcock [2005] FCAFC 197.<br />
36 HANDLING MISCONDUCT
An agency may consider whether an employee who was suspended and subsequently<br />
found not to have breached the Code, is able to seek reaccreditation of any salary foregone,<br />
or leave applied for, during the period of suspension. Section 73 of the PS Act contains a<br />
mechanism for the approval of payments to employees in ‘special circumstances’, which<br />
might provide the authority for any compensatory payment. Section 73 powers have been<br />
delegated to agency heads and may not be exercised by anyone else within the agency.<br />
An employee who is suspended may seek outside employment while the suspension is in<br />
place. An agency’s policies and procedures on external employment generally would apply.<br />
Where an employee is suspended, for ease of contact—for both the employee and agency—<br />
it is suggested that the agency ensure that it has up to date contact details for the<br />
suspended employee.<br />
Right of Review<br />
Agencies should provide guidance to employees on the distinction between the right to<br />
have their suspension from duty reviewed at regular intervals (regulation 3.10(4)) and the<br />
right to have an APS action reviewed (section 33 of the PS Act). Review of suspension<br />
has prospective effect, in that it examines whether an employee should continue to be<br />
suspended from duty from the review point forward. It does not involve a reconsideration<br />
of the original decision to suspend the employee. Review of action, by contrast, is<br />
retrospective, in that it involves re-examination of the original decision. While it is not<br />
mandatory, it is good practice to advise the employee of their right to seek a review of the<br />
decision to suspend under the review of actions provisions of the PS Act. This is discussed<br />
in Chapter 8, Review of Actions.<br />
To ensure that employees are fully aware of their review rights, agencies should consider<br />
including the following paragraphs in any advice to the employee on the suspension<br />
decision:<br />
If you think the decision to suspend you from duty is wrong, you are entitled to ask that it<br />
be reviewed by another person. To make a request for review, write to [the agency head],<br />
stating briefly why you seek a review, and what outcome is sought. Requesting a review of<br />
this decision will not operate to stay the decision.<br />
In any case, I am obliged to review your suspension at regular intervals. I propose to review<br />
your suspension after [date]. If you want me to consider any material other than that<br />
discussed above in the course of reviewing your suspension, you should ensure that it<br />
reaches me by [same date]. I will write to you again after [same date] to advise you of the<br />
outcome of my review. If you want me to review your suspension before then, write to me<br />
and explain why you are making that request.<br />
PART TWO 37
Key points for agency guidance material<br />
Agency guidance material could include information drawn upon from this chapter on<br />
the following:<br />
• identifying who is responsible for deciding whether suspected <strong>misconduct</strong> will be handled<br />
through the <strong>misconduct</strong> procedures or alternate procedures<br />
• providing examples of suspected <strong>misconduct</strong> that the agency considers should usually<br />
be handled under the <strong>misconduct</strong> procedures<br />
• identifying alternative methods of handling suspected <strong>misconduct</strong><br />
• determining when a <strong>misconduct</strong> action should commence once a report of suspected<br />
<strong>misconduct</strong> has been received<br />
• the recordkeeping requirements for employee discussions/counselling sessions and what<br />
to do if the employee’s conduct does not improve or deteriorates further<br />
• circumstances in which an employee may be suspended, with or without pay, or assigned<br />
other duties<br />
• procedures for managing suspension and assignment of duties that identify who is<br />
responsible for decision making.<br />
38 HANDLING MISCONDUCT
5. INVESTIGATIVE PROCESS<br />
This chapter focuses on the decisions that need to be taken once an agency has decided to<br />
conduct a <strong>misconduct</strong> action under the agency procedures established under section 15(3)<br />
of the PS Act. Agencies should also refer to the section in Chapter 9, ‘Avoiding unnecessary<br />
delays’. For the purposes of explaining the different stages of <strong>misconduct</strong> action, the<br />
investigative process has been separated from the decision-making process.<br />
Selecting a decision maker<br />
The first step in the process is to select the decision maker who will determine whether<br />
there has been a breach of the Code and determine whether the decision maker will conduct<br />
the investigation or use a separate investigator. Generally, the agency section 15(3) procedures<br />
will identify the classification/position of employees that have the authority to appoint the<br />
decision maker. The decision maker should be appointed in writing.<br />
The responsibilities of the people undertaking the respective roles need to be made clear<br />
in guidance material.<br />
Independent and unbiased decision maker<br />
The decision maker selected to make a determination as to whether the <strong>misconduct</strong><br />
occurred and whether it constitutes a breach of the Code would preferably be someone<br />
relatively senior within the agency who is familiar with the agency’s business and who is<br />
able to access information on how similar types of <strong>misconduct</strong> have been handled in the<br />
recent past. The employee making this appointment must take reasonable steps to ensure<br />
that this person is, and appears to be, independent and unbiased.<br />
A person may reasonably be thought to be biased if ‘in all the circumstances the parties<br />
or the public might entertain a reasonable apprehension that (the decision maker) might<br />
not bring an impartial and unprejudiced mind to … the question involved.’ (Livesey v<br />
New South Wales Bar Association (1983) 151CLR 288 at 293-294)).<br />
PART TWO 39
Following are some examples of where bias could, or could be thought to, arise:<br />
• a decision maker has a personal interest in the decision<br />
• a decision maker has a work or personal relationship with the employee being investigated,<br />
or witnesses<br />
• a senior manager makes comment on the case in a manner which could be perceived<br />
to influence the more junior decision maker<br />
• a decision maker is a witness in the matter.<br />
Care also needs to be taken to avoid perceived bias if a decision maker has previously<br />
investigated the matter in another capacity (e.g. a privacy investigation or a review of<br />
action). It may still be possible to select them. While they may have a view about what<br />
had happened, they may not necessarily hold an opinion as to whether this constituted<br />
<strong>misconduct</strong>.<br />
If there is any doubt about the suitability of a decision maker, it is wise to make another<br />
choice. It may be appropriate for a person from outside the agency or outside the APS to<br />
be selected, if it is not possible to satisfy the ‘freedom from apparent bias’ from within<br />
the agency.<br />
It is also recommended that the decision maker not be informed of any prior <strong>misconduct</strong><br />
on the part of the employee who is suspected of <strong>misconduct</strong>. This allows the decision<br />
maker to decide whether or not there has been <strong>misconduct</strong> solely on the evidence relating<br />
to the matter under investigation. Prior <strong>misconduct</strong> will be relevant if there is a decision<br />
to impose a sanction.<br />
Investigation skills<br />
Although investigating <strong>misconduct</strong> is sometimes straightforward if the facts and<br />
circumstances of the case are clear, it can be difficult and requires judgement, attention to<br />
detail and established investigative skills. The choice of the decision maker is an important<br />
one. It is strongly recommended that the decision maker appointed to undertake the<br />
determination of whether a breach of the Code has occurred has been trained in the<br />
required skills and processes and/or has experience in such a role, including investigation<br />
skills and administrative decision-making.<br />
The decision maker may decide to use someone with specialised investigative skills to assist<br />
them in their role. The decision maker retains final responsibility for adhering to the<br />
agency’s procedures and processes including procedural fairness. The decision maker should<br />
be actively involved in the planning of the investigation and in ensuring the quality of the<br />
processes. It is the decision maker who makes the determination as to whether the Code<br />
has been breached—not the investigator unless they are the same person. They must be<br />
satisfied:<br />
• with the quality and quantity of the evidence that has been collected<br />
40 HANDLING MISCONDUCT
• with the way it has been collected<br />
• that mandatory procedural steps have been observed.<br />
Investigators—internal or external?<br />
Agencies can use internal or external investigators (for example, the services of a private<br />
consultant or an employee in another APS agency) to assist with investigating <strong>misconduct</strong>.<br />
In either case, it is important to provide clear instructions to investigators about their role<br />
(for example, will they be asked to make a recommendation or a determination about<br />
whether a breach has occurred or not?, will they be required to produce a written report?)<br />
and to ensure that their brief:<br />
• identifies mandatory procedural steps (which must include the agency’s section 15(3)<br />
procedures and any guidance material prepared by the agency that must be observed)<br />
• identifies who will undertake related activities<br />
• provides information about the agency<br />
• details any quality requirements<br />
• outlines milestone reporting required throughout the process, and<br />
• outlines required timeframes. 16<br />
Further, all important in any investigative process is the need to ensure procedural fairness. 17<br />
An external investigator might be appointed when:<br />
• the circumstances of the suspected breach of the Code are such that the employee<br />
under suspicion might reasonably claim that everyone in the agency is the subject of<br />
apprehended bias<br />
• the agency cannot afford to divert any suitable person from their usual duties to attend<br />
to the investigation in a timely manner<br />
• no-one in the agency possesses the skills and experience required to properly<br />
investigate the allegations<br />
• a cost-benefit analysis indicates that the most efficient course would be to appoint an<br />
external investigator.<br />
Deciding on the scope of the investigation<br />
Agencies need to provide general guidance on the choice of which element(s) of the<br />
Code the employee is suspected of breaching but should avoid fettering the discretion of<br />
the decision maker by tasking them to establish whether specific elements of the Code<br />
have been breached. The decision maker should be able to have regard to all of the elements<br />
of the Code and must notify the employee of which particular elements may have been<br />
16<br />
Masters, V., ‘How to brief an external investigator’, AGS HR Practitioners’ Forum, 21 February 2008; APSC; Spry, M.,<br />
‘Natural justice and investigations into public sector <strong>misconduct</strong>’, AIAL Seminar, Canberra, 30 October 2007<br />
17<br />
Ibid<br />
PART TWO 41
eached, and invite comment, before making a finding. It is important to choose the<br />
relevant element(s) of the Code—the wrong choice can complicate or prolong matters—<br />
and to assess whether it is more appropriate to choose one element of the Code or whether<br />
to use a number of elements.<br />
There are two main approaches available when considering the elements of the Code.<br />
• A decision maker may opt to build in multiple elements of the Code depending upon<br />
the suspected <strong>misconduct</strong> so that the final determination taken is more exhaustive.<br />
This approach also helps prevent situations where there is suspected <strong>misconduct</strong> but it<br />
is not immediately obvious what is the extent of the suspected <strong>misconduct</strong>. For example,<br />
inappropriate use of the internet could be a breach of element 13(8) requiring proper<br />
use of Commonwealth resources but following investigation it could also involve a<br />
breach of a lawful direction (13(5)), be found to affect the integrity and reputation of<br />
the APS (13(11)) and, if the conduct involved accessing material such as child pornography,<br />
amount to a failure to comply with an applicable law (13(4)).<br />
• A decision maker may choose one or two elements of the Code that are most directly<br />
relevant to the suspected <strong>misconduct</strong>. A targeted approach is more consistent with the<br />
concept that <strong>misconduct</strong> action in the APS have a corrective function. It is easier to<br />
explain to an employee that their conduct was wrong or inappropriate, if the approach<br />
elements of the Code applied are obviously relevant to the suspected <strong>misconduct</strong>. Even<br />
if the case can be made for a number of elements, adding extra elements can create an<br />
impression of technical abstraction and be unnecessarily resource and time intensive,<br />
given that the agency bears the burden of proof in relation to each separate element of<br />
the Code that the employee is suspected to have breached.<br />
Rather than adopting one approach only, the agency’s decision maker should start with<br />
the flexibility to decide on the approach that best suits the nature of the suspected<br />
<strong>misconduct</strong>. For example, if the suspected <strong>misconduct</strong>, if proven, is likely to lead to a<br />
termination decision, then selecting a larger but relevant number of elements may assist<br />
in defending an unfair dismissal application, should the AIRC not uphold breaches of<br />
some identified elements of the Code.<br />
Whichever approach is adopted, the agency decision maker has an obligation to identify<br />
every element of the Code that they consider may have been breached before they make<br />
the final determination and to ensure that the employee has been notified of, and provided<br />
with appropriate opportunity to comment on, the decision maker’s views in relation to<br />
each of those elements of the Code. If a decision maker chooses to apply as many elements<br />
of the Code as possible and the suspected <strong>misconduct</strong> is proven, then the overall sanction<br />
should reflect the seriousness of the behaviour, not the technical question of how many<br />
elements have been breached.<br />
If the suspected <strong>misconduct</strong> involves criminal behaviour, the investigation may need to<br />
be handled differently. This is explored in more detail in Chapter 2 under the heading<br />
‘Misconduct in the workplace that may also be a criminal act’.<br />
42 HANDLING MISCONDUCT
Advising an employee of the commencement of<br />
<strong>misconduct</strong> proceedings<br />
As soon as the decision to commence a <strong>misconduct</strong> action has been taken and the decision<br />
maker has been selected the employee suspected of <strong>misconduct</strong> should be notified in writing.<br />
The letter should explain in detail:<br />
• the <strong>misconduct</strong> they are suspected of committing<br />
• the element(s) of the Code they are suspected of breaching<br />
• the possible sanctions that may apply<br />
• who will be investigating the <strong>misconduct</strong> (if different from the decision maker)<br />
• the decision maker who will make the determination<br />
• how the process will proceed (providing them with a copy of the agency’s guidance<br />
material and procedures), including their rights.<br />
This letter would normally be signed by the employee who has authorised the <strong>misconduct</strong><br />
proceedings, the decision maker or the investigator in accordance with individual agencies<br />
guidance. A copy of this letter should be placed on the <strong>misconduct</strong> file.<br />
It will not always be possible to give the employee complete details of their suspected<br />
<strong>misconduct</strong> at the outset of an investigation. In such cases, the letter should reassure the<br />
employee that the investigation is only just beginning, that they will be given further<br />
detail about the allegations as the investigation progresses, and that they will be given an<br />
opportunity to comment on the detailed allegations before any finding is made as to<br />
whether the Code has been breached.<br />
If at any time during the investigation it becomes clear that the element(s) of the Code<br />
that the employee is suspected of breaching should be changed in any way the employee<br />
should be informed in writing as soon as possible. Such correspondence should be added<br />
to the <strong>misconduct</strong> file.<br />
Investigating whether <strong>misconduct</strong> has occurred<br />
The investigation will provide the backbone of the agency’s case about the suspected<br />
<strong>misconduct</strong>. Mistakes made in this part of the process can lead to an unfair outcome and/or<br />
decisions being overturned on review.<br />
The person who undertakes the investigation must have the skills and resources to do the<br />
task (see discussion under heading ‘Selecting a decision maker’, above). To ensure a quality<br />
process, it may be necessary for an investigator to be released from some or all of their<br />
normal duties in order to conduct the investigation. Agencies may also need to consider<br />
special accommodation arrangements such as the provision of an office or a secure cabinet<br />
for storage of sensitive material.<br />
PART TWO 43
The material on investigating <strong>misconduct</strong> in this good practice guide does not have the<br />
scope to provide a detailed ‘how to’ guide for conducting investigations. Rather, it highlights<br />
key issues and procedural requirements for investigations of <strong>misconduct</strong>.<br />
Procedural fairness and other administrative law principles<br />
All investigations should be conducted consistent with the requirements of procedural<br />
fairness and other administrative law principles. In the context of decisions associated<br />
with suspected of <strong>misconduct</strong>, procedural fairness generally requires that:<br />
• the employee suspected of breaching the Code must be informed of any allegations<br />
against them<br />
• the employee must be provided with an opportunity to properly respond and put their<br />
case, in accordance with the agency’s section 15(3) procedures before any decision is<br />
made (the ‘hearing’ rule)<br />
• the decision maker must act without bias or an appearance of bias (the ‘bias’ rule)<br />
• there must be facts or information to support adverse findings (the ‘evidence’ rule).<br />
The hearing rule does not require that an employee is provided with every document<br />
relevant to the allegation, but the employee must be sufficiently aware of the nature of<br />
the case against them in order to respond properly. This may require production of<br />
documents in some circumstances. In other circumstances it will be adequate to summarise<br />
evidence or statements being considered. Some agencies’ section 15(3) procedures may<br />
specifically require that the employee be given access to every document that is to be<br />
relied on in reaching a decision.<br />
Other administrative law principles must be considered. It is important that decision<br />
makers understand that a finding that an employee has breached the Code may be<br />
invalid if the decision maker:<br />
• has not been appointed under the agency’s section 15(3) procedures<br />
• fails to comply with the section 15(3) procedures<br />
• acts for the wrong purpose<br />
• exercises discretionary power in bad faith<br />
• takes into account irrelevant considerations or fails to take into account relevant<br />
considerations<br />
• acts at the direction or behest of another person<br />
• acts unreasonably<br />
• acts in accordance with a rule or policy without regard for the merits of the case<br />
• acts on the basis of insufficient evidence.<br />
44 HANDLING MISCONDUCT
Formality and timeliness<br />
The investigative process should be carried out with as little formality as possible. Informality,<br />
however, must not be at the expense of satisfying procedural fairness or other administrative<br />
law principles.<br />
The investigative process should also be undertaken expeditiously—it is in the interests of<br />
the agency and the suspected employee to resolve the issue as quickly as possible. Timeliness<br />
is discussed in greater detail in Chapter 9 under the heading ‘Avoiding unnecessary delays’.<br />
Planning the investigation<br />
Prior to beginning the process of investigating the circumstances of a <strong>misconduct</strong> case, it<br />
is good practice to take the time to plan the process. In some cases it will, in fact, be<br />
necessary to continue or adapt planning as the case progresses. The more detailed planning<br />
should probably be done close to the time of the investigation.<br />
Issues to consider include:<br />
• who/what is being investigated?<br />
• what needs to be found out in order to be able to make a supported and reasonable<br />
determination of whether there has been a breach?<br />
• who needs to be interviewed?<br />
• how should the issue of confidentiality be handled in relation to the identity of any<br />
witnesses or the identity of the employee who reported the suspected <strong>misconduct</strong><br />
• any other sources of relevant evidence that need to be followed up (e.g. information and<br />
communications technology records, attendance records)<br />
• developing a timeline for the investigation<br />
• whether legal advice is needed in a complex case.<br />
Gathering the evidence<br />
Evidence can be collected from various sources. In some cases (e.g. cases involving suspected<br />
improper access to personal information or improper use of email or internet facilities) the<br />
investigation is likely to be founded on physical evidence of conduct (such as records of<br />
computer use by the employee) rather than an opinion formed following interviews.<br />
Sometimes evidence gathering involves interviewing the accused employee and witnesses.<br />
The investigator should establish that the employee understands what will happen under<br />
the <strong>misconduct</strong> procedures and their rights and the purpose of any interviews. They should<br />
also indicate that the objective of the <strong>misconduct</strong> action is to establish facts and gather all<br />
relevant information before any decision about whether the employee breached the Code,<br />
and that the employee will have the opportunity to respond to the evidence against them<br />
before the decision is made.<br />
PART TWO 45
The investigator should also:<br />
• provide the interviewee with sufficient notice of any meeting to allow for adequate<br />
preparation and may allow the interviewee to be accompanied by another person to<br />
provide support. Agency section 15(3) procedures sometimes provide specific direction<br />
about allowing support people to attend interviews<br />
• consider whether it would be appropriate to make available for consideration prior to<br />
the meeting any documented information that will be discussed<br />
• plan the questions to be asked so as to avoid making assumptions, asking vague questions<br />
or asking questions that might influence how responses are given<br />
• wherever possible, seek to reach agreement on relevant facts/circumstances, and seek<br />
corroborating evidence from the interviewee<br />
• decide prior to the interview whether it is to be audio-recorded (in which case a copy<br />
of the recording should be made available to the interviewee) or whether a written record<br />
of interview is to be prepared (in which case it may be convenient to use a note-taker)<br />
• indicate that a record of the discussion will be prepared and will be provided to the<br />
interviewee. The objective should be to have jointly agreed records on the content of all<br />
meetings—however, if this cannot be achieved the area(s) of disagreement should be<br />
identified and documented<br />
• advise other parties to the investigation such as the complainant and any witnesses<br />
that personal information relating to them may be disclosed to the employee and others<br />
where necessary and appropriate. Any personal information about the complainant or<br />
witnesses should be handled in accordance with the relevant agency’s obligations under<br />
the Privacy Act 1988.<br />
When interviewing the employee suspected of breaching the Code, the investigator should<br />
also:<br />
• in accordance with the hearing rule and the relevant agency’s section 15(3) procedures,<br />
where neccessary and appropriate, show the employee evidence given or statements<br />
made in relation to the suspected <strong>misconduct</strong> and allow them to comment on or make<br />
suggestions to correct them<br />
• ensure that the employee has full opportunity to state his or her case including any<br />
extenuating circumstances.<br />
If, after interviews, new or conflicting evidence comes to light, the employee must be advised<br />
of the new evidence if it is relevant to the determination, and be given the opportunity to<br />
respond. Any evidence gathered during the investigation (records of computer use, audio<br />
recordings of interviews, written records of interview, written submissions made by the<br />
employee or other documentary material) must be placed on the file.<br />
46 HANDLING MISCONDUCT
Reviewing the evidence<br />
In reviewing the evidence it is advisable to keep the following issues in mind.<br />
• Has the accused employee been given the opportunity to respond to new or conflicting<br />
evidence?<br />
• Have other witnesses been questioned about evidence in conflict with their witness<br />
statements?<br />
• Have any plausible explanations provided by the employee or witnesses been considered?<br />
• Do any extenuating circumstances have a bearing on the question of breach (i.e. do they<br />
alter the likelihood that the employee did actually engage in the conduct alleged to have<br />
breached the Code), or are they more properly considered in the context of deciding<br />
what (if any) sanction to apply?<br />
• Is any evidence missing and is there enough reliable evidence to be able to draw a<br />
reasonable and balanced conclusion?<br />
• Only consider evidence that is relevant to deciding whether <strong>misconduct</strong> has occurred.<br />
When making a judgement about the reliability of the evidence:<br />
• primary sources of evidence are preferable to secondary sources (e.g. an original document<br />
is better than a photocopy)<br />
• disputed facts should, where possible, be corroborated by other evidence<br />
• give consideration to the value that should be placed on hearsay evidence<br />
• consider the credibility of the witnesses—inconsistencies, honesty, possibility of<br />
collaboration or improper purpose.<br />
Investigation report<br />
The results of the investigation should be written up in a report that:<br />
• outlines the nature of the <strong>misconduct</strong><br />
• sets out the steps taken to collect evidence and information<br />
• presents the evidence in a balanced way (i.e. including evidence both for and against<br />
the employee) including the accused employee’s response to the allegations and the<br />
employee’s response to any new or conflicting evidence that was uncovered in the course<br />
of the investigation<br />
• outlines the conclusions that are able to be made on the available evidence including<br />
any inconsistencies in the evidence or issues that remain unclarified. These conclusions<br />
must flow logically from the evidence and provide a view or a recommendation as to<br />
whether the Code has been breached<br />
• clearly identifies any extenuating circumstances<br />
• includes reasons why the action or behaviour amounted to a breach of the element or<br />
elements of the Code.<br />
PART TWO 47
Evidence does not support a case of <strong>misconduct</strong><br />
In some cases it may become clear early in the course of the investigation that no breach<br />
has occurred or that there will be insufficient evidence to base a finding that a breach has<br />
occurred. If this happens the decision maker should notify the employee suspected of<br />
<strong>misconduct</strong> as soon as possible. Such notification should be placed on the <strong>misconduct</strong> file.<br />
It may be appropriate for the agency to take some action, where the employee has suffered<br />
any loss of reputation because it became known they were suspected of <strong>misconduct</strong> if it is<br />
clear that no such <strong>misconduct</strong> occurred (e.g. with the consent of the employee a notice be<br />
sent to all relevant employees informing them of the outcome). If relevant, an agency<br />
may consider action against any other employee who has falsely and maliciously reported<br />
<strong>misconduct</strong>.<br />
Key points for agency guidance material<br />
Guidance for decision makers and investigators should:<br />
• outline agency procedures for appointment, alert the decision maker (and investigator<br />
if the roles are separated) to the need to be vigilant about circumstances that might<br />
give rise to claims of bias, and what to do if such claims are made<br />
• direct the decision maker (and investigator if the roles are separated) to comply with<br />
the agency’s section 15(3) procedures<br />
• describe agency procedures for conducting an investigation including advice on issues<br />
such as preparing records of discussion and taking witness statements<br />
• provide advice on the different approaches to determining the scope of an investigation<br />
• stress the importance of complying with the requirements of procedural fairness and<br />
other administrative law principles<br />
• note the legislative requirement (generally reiterated in the agency section 15(3)<br />
procedures) that the investigation should be carried out with as little formality and as<br />
much expedition as a proper consideration of the matter allows<br />
• emphasise the need for planning the investigation prior to commencement and,<br />
subsequently, in taking the time to review the process to ensure all available relevant<br />
evidence has been collected<br />
• note the important principles in weighing up the evidence and the key features of the<br />
written report<br />
• cover the handling of situations where evidence does not support <strong>misconduct</strong> having<br />
occurred<br />
• provide contact points for support and advice.<br />
48 HANDLING MISCONDUCT
6. THE DETERMINATION AND SANCTION<br />
This chapter focuses on determining whether or not <strong>misconduct</strong> has occurred and imposing<br />
a sanction on an employee if it has been determined that the employee has breached the<br />
Code.<br />
For the purposes of explaining the different stages of the process for handling <strong>misconduct</strong>,<br />
the decision-making process and the imposition of a sanction have been separated from<br />
the investigative process. Depending on agency processes, the decision maker may or may<br />
not have been involved in the investigation and may not be the person to impose the<br />
sanction.<br />
Role of the decision maker<br />
Once the decision maker considers that the investigation process has been completed in<br />
accordance with the agency procedures and that all relevant evidence has been obtained,<br />
a determination should be made as to whether or not <strong>misconduct</strong> has occurred.<br />
Agencies should ensure that there are procedures in place for obtaining assistance or legal<br />
advice, should the decision maker consider there is an element of uncertainty or risk in<br />
the process.<br />
Given the importance of this role, agencies may wish to consider providing some training<br />
in administrative decision-making such as how to handle evidence or how to reason through<br />
to a defensible conclusion.<br />
Relationship with a separate investigator<br />
When a separate person has undertaken the investigation into suspected <strong>misconduct</strong>, the<br />
decision maker must:<br />
• play an important quality control role by reviewing the process, paperwork and<br />
recordkeeping of the case up to this point to ensure correct procedures have been followed<br />
PART TWO 49
• be satisfied that the investigation has brought them to a point where they can make a<br />
fair, balanced and conscientious decision. Identifying and rectifying flaws at this stage<br />
is much easier than dealing with the matter in a possible review process.<br />
In the case where a separate investigator has provided a recommendation regarding whether a<br />
breach has occurred, the decision maker will need to ensure that they separately and<br />
independently exercise their decision-making power before forming any conclusion.<br />
It is open for the decision maker to take an additional step of writing to the employee<br />
suspected of <strong>misconduct</strong> setting out the available evidence, indicating why the evidence<br />
supports a determination that they have breached one or more of the elements of the Code<br />
(if this is the case), and asking them for any further comment they wish to make prior to<br />
them making their determination. If the decision maker is confident that the investigation<br />
has been properly conducted and procedural fairness has been observed, this would not<br />
be necessary.<br />
Standard of proof<br />
The standard of proof used in determining breaches of the Code is ‘the balance of<br />
probabilities’. The decision maker must be satisfied that a breach is more probable than<br />
not. This civil standard of proof differs from the criminal standard of proof which is<br />
‘beyond reasonable doubt’.<br />
The standard of proof applicable to findings of fact or findings that the Code has been<br />
breached is the civil standard. That is, findings should be based on the conclusion that it<br />
is more probable than not that the matter found to have occurred, in fact occurred. However,<br />
before reaching a finding the decision maker needs to have regard to the gravity of the<br />
adverse consequences which might flow to the employee. In that sense, the civil standard<br />
of proof increases in accordance with the seriousness of the matter under consideration.<br />
In Briginshaw v Briginshaw (1938) 60 CLR 336 the High Court of Australia referred to<br />
the need to act with much care and caution before finding that a serious allegation is<br />
established.<br />
Preparing a decision record<br />
Once all evidence has been collected and reviewed, the decision maker should prepare a<br />
written record of their decision which includes:<br />
• a summary of any additional evidence obtained by the decision maker, or a summary<br />
of the evidence obtained if the decision maker was also the investigator<br />
• consideration of the report prepared by the investigator, if the two roles are separate,<br />
and any additional evidence, noting areas where the investigator’s analysis and<br />
recommendations are accepted, and areas where they are not (and why)—to avoid an<br />
50 HANDLING MISCONDUCT
administrative burden and to reduce the scope for errors, the investigator’s report could<br />
be attached<br />
• a decision as to what happened<br />
• a decision as to whether <strong>misconduct</strong> has occurred, and if so which elements of the Code<br />
have been breached<br />
• the reasons for the decision.<br />
Finding of no breach<br />
If it is clear at this stage that that no breach has occurred, or that there is insufficient<br />
evidence to support a finding that a breach has occurred, the decision maker should advise<br />
the suspect employee as soon as possible. Agencies may also need to take action to remedy<br />
a loss of reputation. This is discussed briefly in the section of Chapter 5 under the heading<br />
‘Evidence does not support a case of <strong>misconduct</strong>’.<br />
Supervisors or managers should also identify any need for remedial action including training/<br />
development and/or performance management measures.<br />
Decision that <strong>misconduct</strong> did occur<br />
If the decision maker decides that a breach has occurred, they should write to the<br />
employee informing them of the final decision. The letter should:<br />
• enclose a copy of the investigator’s report and the decision maker’s decision record<br />
• inform the employee of the name of the person who has been given the authority to<br />
determine any sanction, reiterate the range of possible sanctions, and what the next<br />
steps of the process will involve<br />
• notify the employee of their right to seek review of the findings under section 33 of<br />
the PS Act, noting that seeking a review will not operate to stay the finding of breach<br />
or consideration of the sanction.<br />
Employee moves to another APS agency before a<br />
determination or a sanction<br />
If an employee is suspected of <strong>misconduct</strong> and that employee moves to another APS agency<br />
before a determination is made, Direction 5.6 provides that the <strong>misconduct</strong> proceedings<br />
be undertaken in the new agency. If action had not commenced in the old agency, then<br />
<strong>misconduct</strong> procedures should commence in the new agency in accordance with the new<br />
agency’s <strong>misconduct</strong> procedures. If <strong>misconduct</strong> proceedings were underway before the<br />
move, the new agency should recommence <strong>misconduct</strong> proceedings in accordance with<br />
its own <strong>misconduct</strong> procedures.<br />
PART TWO 51
It would be open to the agency head of the new agency who decides to initiate <strong>misconduct</strong><br />
procedures to utilise the expertise of employees from the old agency in the investigation<br />
if required.<br />
Where an employee moves after a finding of breach but before application of sanction, it<br />
is not necessary for a fresh investigation to be carried out. The new agency head can apply a<br />
sanction, in accordance with the new agency’s procedures, on the basis of the losing agency’s<br />
finding of breach. An agency head’s power under section 15 of the PS Act to apply a<br />
sanction extends not only to imposing sanctions on employees in their agency, in respect<br />
of findings of breach made under that agency’s Code of Conduct procedures, but also in<br />
respect of findings made under another agency’s Code of Conduct procedures.<br />
The appropriate sanction<br />
Once a determination has been made that an employee has breached the Code, the<br />
process of determining an appropriate sanction should begin.<br />
Imposing a sanction<br />
A sanction can only be imposed on an employee who is found by a decision maker appointed<br />
under the agency’s section 15(3) procedures to have breached the Code.<br />
The person who imposes the sanction must hold a delegation from the agency head of<br />
their powers under section 15(1) of the PS Act. Advice from the <strong>Australian</strong> Government<br />
Solicitor suggests the person imposing the sanction might usefully be delegated powers<br />
in the following way:<br />
I, [agency head name], [title], [agency], acting under my powers of delegation under the<br />
<strong>Public</strong> <strong>Service</strong> Act 1999 (the Act) and the <strong>Public</strong> <strong>Service</strong> Classification Rules 2000 (the<br />
Classification Rules), delegate to [name], my powers under the Act and the Classification<br />
Rules to impose on an APS employee in [agency] who is found (under procedures established<br />
under section 15(3) of the Act) to have breached the APS Code of Conduct, the sanctions<br />
set out in section 15(1) of the Act.<br />
This gives the sanction delegate indisputable authority to impose the sanction of termination<br />
of employment (under section 29 of the PS Act), or to impose a reduction in classification<br />
(under the Classification Rules), as well as the power to impose any of the other sanctions<br />
specified in section 15(1) of the PS Act.<br />
Agencies need to consider whether they wish to separate the two roles:<br />
• determining if <strong>misconduct</strong> has, in fact, occurred<br />
• imposing an appropriate sanction.<br />
52 HANDLING MISCONDUCT
Separating these roles may assist in minimising procedural flaws and provide a safeguard<br />
to the administrative law requirement about not having regard to irrelevant considerations.<br />
Having separate decision makers for these issues would not prevent the person deciding<br />
on whether a breach has occurred also being tasked with recommending a particular<br />
sanction to the appropriate decision maker. However, the person holding the sanction<br />
power would need to exercise that power on the basis of their own consideration of the<br />
facts and not by blindly adopting another person’s recommendation(s) as the sanction<br />
delegate is providing an important overall quality assurance role.<br />
It may not always be necessary to separate out the decision about sanctions in all cases.<br />
The risks, in straight forward cases involving less serious <strong>misconduct</strong>, of using the same<br />
person for making the decision on whether a breach has occurred and also deciding the<br />
sanction, are significantly smaller.<br />
The separation of roles may also be difficult in smaller agencies. When the role of<br />
determining if there is a breach is combined with determining the sanction, extra care<br />
must be taken when imposing a sanction so that only those matters relevant to deciding<br />
the sanction are considered.<br />
Role of sanction delegate<br />
The role of the sanction delegate is one where they have been given the authority to<br />
determine a sanction from the range set out in section 15(1) of the PS Act. They exercise<br />
their power on the basis of their consideration of the facts.<br />
Consistent with the Federal Magistrates Court decision in Walworth v Merit Protection<br />
<strong>Commission</strong>er and Anor [2007] FMCA 24, it is preferable to adhere strictly to agency<br />
section 15(3) procedures for determining breaches of the Code of Conduct. While not<br />
every failure to comply with the section 15(3) procedures will render a decision invalid,<br />
where a sanction delegate (or anyone else, for example, the Merit Protection <strong>Commission</strong>er)<br />
finds that section 15(3) procedures have not been adhered to (for example, a breach of<br />
the hearing rule or reasonable apprehension of bias), the relevant decision is likely to be<br />
invalid and consideration should be given to whether the process should be re-done<br />
before a different delegate.<br />
The sanction delegate is unlikely to be able to formally revoke the breach decision, but<br />
could raise the matter with a relevant person within the agency. The only exception to<br />
this might be where there was unreasonable delay in coming to a decision. In such cases,<br />
re-doing the process would only further add to the delay. In an extreme case, the delay<br />
would invalidate the decision—in Lee v Jacka [1994] FCA 1381, the Federal Court held<br />
a decision to be beyond power because it was not exercised within a reasonable period.<br />
PART TWO 53
That said, an invalid decision (that is, the original one), is still invalid. The judgement<br />
would be whether further delay would in itself render the decision invalid. It may be that<br />
in a case of a lesser but still undesirable delay, it would not be unreasonable to take the<br />
delay into account as a mitigating factor. Where these circumstances arise agencies<br />
should seek legal advice.<br />
Consistency of sanctions<br />
It is important that there is a degree of consistency within an agency in the use of sanctions<br />
for the same type of <strong>misconduct</strong>, where circumstances are essentially similar. However,<br />
there should clearly not be any simple, ‘formula driven’ approach to setting a sanction,<br />
and differences in sanctions between cases should reflect the particular circumstances of<br />
both the <strong>misconduct</strong> and the employee. Whilst striving for consistency in imposition of<br />
sanctions is desirable, some degree of variation is clearly appropriate.<br />
To assist in maintaining consistency, agencies may find it helpful to:<br />
• consider limiting the delegation to apply a sanction to a small number of people within<br />
the agency and further limit the number of people with the delegation to impose more<br />
serious sanctions<br />
• provide clear guidelines on the factors to be considered in deciding on sanctions<br />
• have available a strong specialist HR and/or legal resource that can be consulted by<br />
decision makers<br />
• establish internal databases of cases and sanctions, and indicate that they should be<br />
consulted when determining a sanction.<br />
Using a database to monitor cases and imposition of sanctions also assists strategic<br />
management of <strong>misconduct</strong> issues at the agency level (e.g. by identifying trends in types<br />
and numbers of <strong>misconduct</strong>).<br />
Procedural fairness and notifying the employee<br />
Provisions in the PS Act and Directions emphasise the need to ensure procedural<br />
fairness in relation to the making of a determination that an employee has breached the<br />
Code. However, the legal principles of procedural fairness also apply to the imposition of<br />
a sanction. This imposes an obligation to advise the employee of their proposed sanction<br />
(either by letter or by providing a draft copy of the report outlining the decision) before<br />
the decision is taken, and the reasons for it, including any factual material proposed to be<br />
taken into account such as mitigating circumstances. This is to ensure the employee is<br />
given reasonable opportunity to comment, particularly on the accuracy or weight of any<br />
factual material.<br />
Following receipt of an employee’s comments concerning the sanction(s) that might be<br />
applied, the delegate needs to decide if the employee’s comments contain any information<br />
that would lead him or her to reconsider the proposed sanction. After making the final<br />
54 HANDLING MISCONDUCT
decision on the appropriate sanction the delegate should ensure that this decision is<br />
documented including the reasons for the decision and a date for the sanction to come<br />
into effect. The delegate must take responsibility for ensuring that the employee is promptly<br />
notified in writing of the sanction decision.<br />
Date of effect<br />
A sanction’s date of effect will not necessarily be the same as the date a sanction is decided,<br />
as this will depend on allowing enough time for necessary administrative action to be<br />
taken, for example, organising a reduction in classification.<br />
The date of effect stipulated for a sanction is not delayed where an employee who is found<br />
to have breached the Code applies for a review of that decision by the Merit Protection<br />
<strong>Commission</strong>er or, in the case of termination of employment, the AIRC.<br />
Sanctions available<br />
An employee with the delegation to impose a sanction may impose one or more of the<br />
following sanctions (section 15(1) of the PS Act):<br />
• termination of employment<br />
• reduction in classification<br />
• re-assignment of duties<br />
• reduction in salary<br />
• deductions from salary, by way of fine<br />
• a reprimand.<br />
There is no provision in the PS Act for any other form of sanction, but other management<br />
action may be warranted in order to reduce the risk of further <strong>misconduct</strong> (e.g. restricting<br />
an employee’s access to the internet following a finding of internet misuse). Any such<br />
action should clearly be cast as management action and not as a sanction.<br />
A determination that <strong>misconduct</strong> has occurred does not necessarily mean that a sanction<br />
must be imposed. A decision can be taken that other remedial action may be appropriate.<br />
Factors to be considered in determining the sanction<br />
The purpose of the Code is to ensure effective administration and to maintain public<br />
confidence in the integrity of an organisation’s processes and practices rather than to<br />
punish individuals. Sanctions should focus on reducing or eliminating the likelihood of<br />
future similar behaviour. Some guidance on what agencies may reasonably and lawfully<br />
do to utilise the processes for handling <strong>misconduct</strong> by way of sending a message of general<br />
deterrence to employees is included in Chapter 9 under the heading ‘Quality assurance’.<br />
PART TWO 55
Sanctions are intended to be proportionate to the nature of the breach, provide a clear<br />
message to the relevant employee that their behaviour was not acceptable, and act as a<br />
deterrent to the employee and others. Where a sanction is too severe, it is likely to be seen<br />
as unfair by the employee concerned, and others (if they become aware of the outcome),<br />
and may be counterproductive. The sanction should focus on the seriousness of what the<br />
employee has done—the number of elements breached is not, of itself, a relevant<br />
consideration. Prior <strong>misconduct</strong> is also relevant to the imposition of a sanction and might<br />
usefully be taken into account by the sanction delegate where:<br />
• it indicates that the employee was, or should have been, well aware of the standard of<br />
conduct expected and the potential consequences of <strong>misconduct</strong><br />
• it demonstrates that the employee is apparently unwilling to adhere to the standard of<br />
conduct expected.<br />
The courts have indicated a range of other factors that are or may be relevant in<br />
determining the level of a sanction. These are outlined below.<br />
The nature and seriousness of breach including:<br />
• the type of conduct involved (e.g. discourtesy as compared to theft)<br />
• amounts, values or quantities (e.g. a minor degree of unofficial photocopying as<br />
compared to running a business using internal mail facilities)<br />
• the period over which the <strong>misconduct</strong> occurred<br />
• evidence of any personal benefit from the breach<br />
• the actual and potential consequences of the employee’s conduct.<br />
The degree of relevance to the employee’s duties and the reputation of the APS<br />
including:<br />
• the seniority of the employee, with more senior employees generally expected to set an<br />
example for more junior staff, and required to exercise a greater degree of judgement<br />
• whether a breach of trust is involved<br />
• whether the nature of the breach has affected the confidence of the agency in the<br />
employee’s ability to perform their current duties<br />
• any special job requirements (e.g. need to maintain professional and ethical standards)<br />
• extent to which the <strong>misconduct</strong> affects the reputation of the APS.<br />
Whether the <strong>misconduct</strong> was uncharacteristic including:<br />
• the length of service, balancing a previously unblemished record against the expectation<br />
of greater awareness of behavioural requirements<br />
• whether there are records of previous counselling about related issues<br />
• the extent to which there is evidence that the behaviour is atypical—to assess this, the<br />
behaviour over a longer period may need to be examined (e.g. any records of informal<br />
counselling within the last two years)<br />
56 HANDLING MISCONDUCT
• the employee’s attempts to stabilise any personal situations impacting on work (e.g.<br />
through accessing employee assistance schemes)<br />
• support by colleagues and supervisors (e.g. reports or references) in relation to work<br />
performance and general character.<br />
Response to the <strong>misconduct</strong>, and the likelihood of recurrence including:<br />
• whether the employee admits the breach, shows a willingness to take responsibility,<br />
shows remorse and understands the seriousness of the breach<br />
• cooperation with the investigation<br />
• whether the employee has reflected on the action and how it can be avoided in the<br />
future and their commitment not to repeat the breach in the future.<br />
The effect of the proposed sanction on the offender including:<br />
• any loss of earnings already incurred by the employee as a result of suspension.<br />
Mitigating factors<br />
The presence of mitigating factors may warrant the imposition of a lesser sanction than<br />
might otherwise have been imposed. These can include:<br />
• the degree of responsibility for the breach and whether there was any provocation,<br />
persuasion or even coercion by other employees<br />
• the intention of the employee to breach the Code and whether the breach was<br />
premeditated or involved a spur of the moment decision<br />
• the extent to which the employee’s disability, health or other factors may have influenced<br />
their conduct (although care must be taken not to set multiple standards)<br />
• age, experience and length of service<br />
• the level of guidance provided by the agency in relation to the Code in general and<br />
explicit guidance or directions about the particular breach (including existence of<br />
consistently applied policies)<br />
• extent to which the breach may have reflected a culture or common practice in the work<br />
area which needs to be addressed as a systemic problem<br />
• any procedural issues, for example, unreasonable delay between the matter first coming<br />
to notice and the sanction being imposed.<br />
When particular sanctions may be appropriate<br />
The person imposing the sanction must be satisfied that the sanction is proportionate to<br />
the <strong>misconduct</strong>.<br />
PART TWO 57
Termination of employment<br />
Termination of employment is the most severe of sanctions. It is appropriate only where:<br />
• it is considered that the <strong>misconduct</strong> is so serious that it is no longer desirable that the<br />
employee should remain in the APS<br />
• the employee, through their action, has repudiated a basic element of the employment<br />
relationship (e.g. by indicating that they do not accept the need to follow lawful and<br />
reasonable directions from their managers).<br />
While every case needs to be considered in the context of its particular circumstances,<br />
examples of behaviour determined to be a valid reason for termination of employment by<br />
the AIRC are in the box on the next page. Agencies should also refer to the <strong>Commission</strong><br />
publication Termination of Employment. 18<br />
Reduction in classification<br />
Reduction in classification is particularly appropriate where it is considered on the basis<br />
of the determined <strong>misconduct</strong> that the employee can no longer be trusted to perform the<br />
duties of their current position or another position at the same level of responsibility. For<br />
example where an employee demonstrates by their <strong>misconduct</strong> that they should no longer<br />
have any supervisory responsibilities, or responsibility for authorising payments, it would<br />
be appropriate to effect a reduction in classification.<br />
Reduction in classification is also appropriate where termination of employment would<br />
be warranted but for mitigating factors that suggest that the employee should be given a<br />
chance to redeem themselves. Discussions would need to take place within the agency to<br />
ensure that duties were available at the classification level proposed, before the sanction is<br />
imposed.<br />
A reduction in classification cannot be made to operate only for a specific period. The<br />
practical impact of the sanction will evaporate immediately if the employee secures higher<br />
duties or a substantive promotion to their original level.<br />
As part of a reduction in classification under section 15(1)(b) of the PS Act, it was<br />
intended that an employee’s salary would be reduced.<br />
Where a reduction in classification is imposed it is important to specify the salary point<br />
to which the employee’s salary will be reduced. This is because the power to reduce<br />
classification in section 15(1)(b) does not include an express power to set salary at a<br />
particular point. The level to which an APS employee’s salary should be reduced may be<br />
informed by the terms of the industrial agreement applying to their employment. Where<br />
the level to which an employee’s salary should be reduced is not clear from the relevant<br />
18<br />
<br />
58 HANDLING MISCONDUCT
industrial agreement, it is recommended that the agency head impose two sanctions—a<br />
reduction in classification 15(1)(b) and a reduction in salary under section 15(1)(d)—to<br />
ensure that the agency head has the power to reduce the salary to a particular point. 19<br />
Where an agency head has not relied on the powers in both section 15(1)(b) and (d) to<br />
specify a lower salary as well as to reduce classification, the safest approach would be to<br />
decrease the employee’s salary to the top pay point in the lower classification (if the<br />
industrial instrument provides for lower pay points).<br />
Examples of behaviour found to breach the Code confirmed<br />
as a valid reason for termination by the AIRC<br />
Repeated and consistent failure, when acting in the course of APS employment, to treat<br />
everyone with respect and courtesy and without harassment (as required under section<br />
13(3) of the PS Act):<br />
- An employee was terminated after behaviour that included making blatantly false<br />
allegations, dogged refusal to acknowledge relevant policies and the Code, grievancebased<br />
harassment of fellow employees and managers; concoction of assault stories;<br />
and inability to communicate with other staff and to conform to normal behavioural<br />
standards (McKeon v Centrelink, PR911316—this case also involved breaches of<br />
sections 13(1) and 13 (5) of the PS Act).<br />
- In another decision, the AIRC noted that, despite warnings, the approach of the employee<br />
in relation to providing co-workers with respect and courtesy did not change (Curr v<br />
ATO, PR953053).<br />
- These appear to be the most common type of behaviour where terminated employees<br />
seek remedies through the AIRC, with behaviour involving treatment of colleagues,<br />
junior staff, supervisors and customers.<br />
Serious failure to behave with honesty and integrity in the course of APS employment:<br />
- failure to disclose dismissal from previous employment for Code breaches along with<br />
failure to declare participation for profit in a private sector company whose business<br />
related to the business of the agency (also breached sections 13(9) and (11)) (Ahmed v<br />
Department of Immigration and Multicultural Affairs, PR916461)<br />
- misuse of departmental credit card (Department of Employment and Workplace Relations<br />
v Oakley, PR954267 and PR954267—also involved breach of sections 13 (5), (10) and<br />
(11)). This decision is also significant in that the Full Bench held that it was appropriate<br />
and reasonable to delay taking Code action so as not to prejudice criminal proceedings<br />
about the same matter, and that the decision to place the employee on alternative,<br />
restricted duties was appropriate and preferable to suspension.<br />
19<br />
It is possible for more than one sanction to be applied for an employee found to have breached the APS Code if the person<br />
imposing the sanction is satisfied that more than one sanction is appropriate in the circumstances and can give a proper reason<br />
for their decision.<br />
PART TWO 59
Failure, generally repeatedly, to comply with lawful and reasonable directions:<br />
- directions in relation to return to duty (A Romanov-Hughes v Department of Defence,<br />
PR920194<br />
Serious misuse of Commonwealth resources:<br />
- receiving, storing and sending pornographic or otherwise sexually explicit emails or<br />
other offensive material using the employer’s email system (Williams v Centrelink,<br />
PR942762—also found to be a breach of section 13(11)—and O’Neile v Centrelink,<br />
PR973658).<br />
Re-assignment of duties<br />
The sanction involving a re-assignment of duties at the same classification level (including<br />
to a different location) is intended to be used in situations where the integrity and<br />
effectiveness of the APS may be compromised if employees are not removed from a<br />
particular location or from their present duties, even though the conduct in question does<br />
not warrant termination of employment. For example, this could occur:<br />
• where the nature of the employee’s conduct is such that it may be difficult for colleagues<br />
to continue working harmoniously with them<br />
• where an employee is no longer trusted to take due care with a particular aspect of their<br />
current duties, for example, the handling of cash.<br />
Where the reassignment involves a change of location, the sanction should be used only<br />
after careful consideration of all the circumstances, taking into account the impact on the<br />
employee, such as the financial costs and the effect of dislocation on the employee and<br />
his or her family.<br />
Discussions would need to take place within the agency to ensure that a position in<br />
another area/location was available, before the sanction is imposed.<br />
This sanction could be imposed for a defined period if it incorporated a decision to<br />
return the employee to their former duties after a specific period.<br />
Reduction in salary<br />
A reduction in salary can be used to demonstrate the seriousness with which the<br />
employee’s conduct is viewed. It may be particularly appropriate where the employee’s<br />
conduct does not indicate that he or she understands the seriousness of the breach they<br />
have committed and as a signal about appropriate behaviour.<br />
A reduction in salary can be imposed for a temporary period or for an indefinite period.<br />
Generally, the reduction will be subject to any subsequent salary event, such as a promotion<br />
or a salary increase provided for in an agreement. It is, however, possible for an agency to<br />
60 HANDLING MISCONDUCT
impose a salary reduction for a defined period that makes provision for how the reduction<br />
would interact with any subsequent salary event—the sanction could state, for example,<br />
that there will be ‘a reduction of 10% in the salary which would otherwise be payable<br />
from time to time over a 12-month period’.<br />
The period for which a reduction in salary is to have effect should be clearly specified at<br />
the time the sanction is determined. Once the period of sanction is complete, the employee<br />
is entitled to be paid the salary at the level the employee would have received if they had<br />
not been subject to the temporary reduction.<br />
(Refer also to comments under reduction in classification)<br />
Deductions from salary (fine)<br />
This sanction is appropriate for less serious breaches, where it is appropriate for the agency<br />
to demonstrate the seriousness with which the employee’s conduct is viewed, but it is not<br />
appropriate for the sanction to have long-term financial implications for the employee. A<br />
sanction of a fine may be imposed by way of a one-off deduction or by deducting an amount<br />
from salary each pay for a defined period.<br />
Deductions from salary are limited to no more than 2% of an employee’s annual salary.<br />
In determining the upper-limit of a fine in a particular case, the decision maker needs to<br />
consider carefully the meaning of the term ‘salary’ in the light of the agency’s remuneration<br />
arrangements.<br />
Reprimand<br />
A reprimand is the least severe form of sanction and is most appropriate in situations<br />
where the <strong>misconduct</strong> is not of a grave nature, or where it is clear that the employee has<br />
learned from the disciplinary process and presents no appreciable risk of further <strong>misconduct</strong>.<br />
It acts as both a mark of disapproval of past conduct and as a warning for the future.<br />
It should be noted that where a reprimand is imposed it is subject to the same standards<br />
of recordkeeping as apply to other sanctions. For this reason it may be practical for the<br />
reprimand to be administered at a face-to-face meeting, by reference to a written record<br />
of the reprimand, which is provided to the employee at the conclusion of the meeting,<br />
with a copy placed on the conduct file.<br />
Agencies should also consider who would be the most effective person to deliver the<br />
reprimand—generally a reprimand delivered by a higher level manager will carry greatest<br />
weight.<br />
PART TWO 61
Applying multiple sanctions for one breach<br />
It is possible for more than one sanction to be applied to an employee found to have<br />
breached the Code if the person imposing the sanction is satisfied that more than one<br />
sanction is appropriate in the circumstances of the case and can give a proper reason for<br />
their decision. For example, an employee may be re-assigned duties and have a fine imposed.<br />
Applying sanctions for multiple breaches<br />
It is usually appropriate to reflect the existence of multiple related breaches in a more<br />
severe sanction rather than separate sanctions for each breach. Where the breaches are<br />
unrelated, for example a harassment incident and an unrelated theft, separate sanctions<br />
may be appropriate. In any case, the decision maker should, after deciding what sanction<br />
is warranted in relation to each breach, consider these decisions in order to ensure that<br />
the total effect is not disproportionate (i.e. neither too harsh nor too lenient) to the<br />
seriousness of the breaches considered as a whole—in other words, apply the totality<br />
principle ‘take a last look at the total to see whether it looks wrong’, Mill v The Queen,<br />
(1988), 166 CLR 54.<br />
Key points for agency guidance material<br />
Agencies may wish to consider developing a checklist and a template for reports and sample<br />
letters to assist decision makers and to ensure both consistency in reporting standards and<br />
the application of procedural fairness.<br />
Guidance material should include:<br />
• advice on the role of the decision maker<br />
• advice for the decision maker on the breach about preparing decision record—agencies<br />
may wish to consider developing a template<br />
• advice on how to handle a case where an employee moves to another agency<br />
• an explanation of the sanctions that can be used<br />
• the factors to be considered in determining an appropriate sanction<br />
• some agency-specific examples of when particular sanctions may be appropriate<br />
• the importance of consistency<br />
• references to sources of advice such as data bases, HR personnel.<br />
It should also provide guidance on handling the process of notifying the employee of a<br />
proposed sanction.<br />
62 HANDLING MISCONDUCT
Administrative Issues and Quality Assurance<br />
PART 3
7. RECORDKEEPING AND ACCESS TO RECORDS<br />
The Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988 are<br />
relevant to the keeping of written records of <strong>misconduct</strong> actions—with the latter two<br />
Acts also related to access to, and use of, records.<br />
Recordkeeping<br />
The National Archives of Australia Administrative Functions Disposal Authority of February<br />
2000 (Disposal Authority) provides information on the retention of records and sets out<br />
minimum periods for which various classes of records relating to counselling and<br />
<strong>misconduct</strong> matters should be retained.<br />
Such records include records documenting:<br />
• matters which form the basis for an investigation of whether there has been a breach<br />
of the Code<br />
• formal investigations of alleged breaches of the Code<br />
• reviews of, or litigation about, Code decisions<br />
• the determination and implementation of a sanction.<br />
This Disposal Authority sets out minimum retention periods for each of these types of<br />
documents. Full details can be accessed through the National Archives of Australia<br />
website: http://www.naa.gov.au/recordkeeping. A summary of the main provisions is<br />
included in Appendix 4.<br />
The Disposal Authority was developed through a process of extensive consultation with<br />
agencies. It provides a useful benchmark of contemporary APS norms as to the minimum<br />
length of time that previous conduct is regarded as still relevant in making later decisions<br />
about an employee. However, the decision whether records should be kept for a period<br />
longer than the minimum established by the Disposal Authority rests with the agency.<br />
PART THREE 65
Agencies will need to establish policies that set out how long different records are to be<br />
retained in the agency—for example, for cases of suspected serious <strong>misconduct</strong> where the<br />
employee resigns, an agency may decide that the records should not be destroyed. While<br />
not all documents need to be kept for the same amount of time, the retention periods set<br />
by agencies must be consistent for the same type of document.<br />
Agencies should make policies concerning the retention of documents relating to suspected<br />
<strong>misconduct</strong> and <strong>misconduct</strong> readily available to all employees.<br />
Recordkeeping requirements<br />
Records relating to <strong>misconduct</strong> action need to be kept separate from the personal file of<br />
the employee concerned. The existence of a separate <strong>misconduct</strong> file should, however, be<br />
made apparent on the personal file (e.g. by cross-reference).<br />
Files of this kind are to be classified ‘In Confidence’ and should be held in secure storage.<br />
Access for management purposes should be allowed only on a strict need-to-know basis.<br />
Decision makers, who either are determining whether the Code has been breached or<br />
who are deciding an appropriate sanction, should have access to these records.<br />
The person(s) involved in the investigation and decision-making should be responsible<br />
for the maintenance and security of the file records. Material placed on the <strong>misconduct</strong><br />
file should include:<br />
• all correspondence with the suspect employee, including the letter informing them they<br />
are suspected of breaching the Code, the letter that fully outlines the ‘case against them’,<br />
the letter advising them of the final determination, the letter outlining the proposed<br />
sanction and the reasons for it and the letter advising them of the sanction and their<br />
review rights<br />
• any attachments to the correspondence<br />
• all relevant email correspondence relating to the investigation, decision-making or<br />
imposition of a sanction<br />
• all material associated with planning the investigation such as records of telephone<br />
calls, letters or emails organising interviews<br />
• copies of any draft material provided to the employee for comment<br />
• the investigation report with all relevant evidence attached including such items as<br />
transcripts of evidence<br />
• the employee’s response to the correspondence.<br />
66 HANDLING MISCONDUCT
Retention and disposal of <strong>misconduct</strong> records<br />
In determining how long records are to be retained, agencies must take into account that<br />
<strong>misconduct</strong> proceedings are designed to protect the integrity of the APS and to prevent<br />
recurrence of any behaviour(s) rather than punish a person for the rest of their working<br />
life. Timeframes need to be fair and reasonable and reflect a balance between the needs<br />
of the agency, the employee and the public interest.<br />
Agencies should ensure that records are destroyed in accordance with agency procedures.<br />
This also means there is a responsibility to ensure that records are destroyed appropriately<br />
when employees with a current <strong>misconduct</strong> record move to other agencies.<br />
Included below are the minimum requirements contained in the Disposal Authority.<br />
Findings of no <strong>misconduct</strong><br />
If there has been an investigation into suspected <strong>misconduct</strong> of an employee and it is<br />
decided that the allegations are unfounded, then any records should be destroyed 18 months<br />
after the investigation is completed. However, the employee concerned may request that<br />
the records be kept for the later of either:<br />
• until the employee reaches the age of 75 or<br />
• 7 years after the last action relating to the suspected <strong>misconduct</strong>.<br />
The employee may also request that the records be destroyed at a specified time.<br />
If an allegation is made of <strong>misconduct</strong> but no follow-up investigation is made because it<br />
was considered frivolous or vexatious or without substance, all records should be destroyed<br />
18 months after the last action in the file.<br />
Findings of <strong>misconduct</strong><br />
If, in the period of five years after a finding of <strong>misconduct</strong> against an employee is made,<br />
there have been no new breaches of the Code:<br />
• the <strong>misconduct</strong> record of the employee should be destroyed and any cross reference in<br />
his or her personnel file should be removed<br />
• the employee concerned should be informed in writing that the <strong>misconduct</strong> record has<br />
been destroyed and that any reference in their personnel file has been removed.<br />
Termination of employment as a result of a breach of the Code remains on the public<br />
record.<br />
If an employee who has been found to have breached the Code re-offends within five years,<br />
the records of earlier offences should be kept for a further period of five years.<br />
PART THREE 67
Investigation not finalised<br />
If an employee resigns during the course of an investigation of suspected <strong>misconduct</strong>, any<br />
documents that have been obtained or created up to the date of resignation should be<br />
retained on a separate <strong>misconduct</strong> file, even where the investigation is not complete.<br />
Access to <strong>misconduct</strong> records<br />
Under the Information Privacy Principles (IPPs) of the Privacy Act 1988, the purpose<br />
for which personal information was originally collected is a crucial factor in determining<br />
how it can be used and to whom it can be disclosed outside the agency. Agencies should<br />
refer to the information on the website of the Office of the Federal Privacy <strong>Commission</strong>er:<br />
http:// www.privacy.gov.au.<br />
Agencies need to think carefully how they frame the purpose of the collection of personal<br />
information. The purposes for which they collect information in relation to <strong>misconduct</strong><br />
and usual practice as to how information might be used or disclosed should be set out in<br />
an agency’s privacy or human resource management policies. In addition, when collecting<br />
information directly from individuals, agencies should make them aware of how it may<br />
be used or disclosed in accordance with the IPPs, for example, that information may need<br />
to be passed on within the agency or to law enforcement authorities if it is considered that<br />
there may be a breach of the Code or the criminal law.<br />
In deciding whether material that formed the basis for a finding of <strong>misconduct</strong> or that<br />
comes to light through an investigation can be used for other purposes, agencies need to<br />
consider:<br />
• the IPPs (in particular IPP2, IPP9, IPP10 and IPP11)<br />
• administrative law principles, including the need to have regard only to relevant<br />
considerations and the rules of natural justice<br />
• Commonwealth and state or territory spent convictions legislation—in cases where a<br />
sanction was imposed for a breach of the criminal law<br />
• the duty of care to other employees under occupational health and safety legislation<br />
should an investigation reveal risks to the safety of other employees.<br />
Some directly related purposes or purposes authorised by law where information relating<br />
to previous counselling or sanctions for <strong>misconduct</strong> may be relevant include:<br />
• pre-employment checks with prior APS employers for the purposes of a character<br />
clearance under section 22 of the PS Act<br />
• promotion decisions<br />
• protective security assessments<br />
• in assessing an employee’s performance where performance management schemes have<br />
regard to whether an employee embodies the APS Values and the Code as well as<br />
achieves outcomes<br />
68 HANDLING MISCONDUCT
• to demonstrate that the employee was investigated but exonerated or that there was<br />
insufficient evidence found to take action<br />
• as part of an employee’s salary record for the purpose of calculating salary, long service<br />
leave and superannuation entitlements<br />
• considering what sanction to impose.<br />
Agency policies should also provide that, regardless of whether <strong>misconduct</strong> records have<br />
been removed from an employee’s personal file or not, managers should not have regard<br />
to past findings of <strong>misconduct</strong> once the agency-determined retention period has expired. 20<br />
It may be lawful for agencies to provide information on <strong>misconduct</strong> to other employers<br />
or potential employers but the applicant will need to be informed of this and given the<br />
opportunity to comment by the employing agency or potential employing agency (refer<br />
to the <strong>Australian</strong> <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>’s Circular No 2007/2: The Privacy Act and<br />
employee information concerning Code of Conduct matters).<br />
Before providing any information, agencies should ensure that all recordkeeping procedures<br />
have been followed such as destroying a <strong>misconduct</strong> record when the required period has<br />
passed since the last action on the record.<br />
When passing <strong>misconduct</strong> records to a new agency following the movement of an employee,<br />
agencies should ensure that the employing agency is aware of the recordkeeping guidelines<br />
that apply to the <strong>misconduct</strong> record and advise the agency when any material is due to<br />
be destroyed. Similarly, if an agency receives files with <strong>misconduct</strong> records they should<br />
ensure that they are aware of the recordkeeping requirements of the other agency generating<br />
the records and adhere to them as if they were their agency’s recordkeeping procedures.<br />
Considering <strong>misconduct</strong> in the selection process<br />
The selection process is a key means by which an agency gains relevant information<br />
regarding eligibility and suitability from applicants.<br />
As candidates are not bound to identify any problems if not specifically asked, they should<br />
be specifically asked for relevant information on their previous work history. While it may<br />
not be possible to ensure that all information provided by applicants is accurate, agencies<br />
need to be aware of the risks in not checking information provided. 21<br />
Having a work history that includes a finding that the employee has breached the Code<br />
or being investigated for a suspected breach does not automatically exclude that employee<br />
from consideration in a selection process. If an applicant discloses prior <strong>misconduct</strong> or<br />
the delegate or panel is aware of prior <strong>misconduct</strong>, a decision on whether the person is<br />
suitable for employment should not be made without assessing the work-related qualities<br />
20<br />
Agencies should note the decision of the AIRC in Walsh v <strong>Australian</strong> Taxation Office [PR951810], Sydney, 4 March 2005.<br />
21<br />
Agencies should refer to the <strong>Commission</strong> publications Ongoing Employment—Recruitment and Selection and Conditions of<br />
Engagement for advice on pre-employment <strong>misconduct</strong> and imposing conditions of engagement.<br />
PART THREE 69
of the applicant against the identified work-related qualities (which includes personal<br />
qualities) genuinely required for the duties.<br />
When dealing with a previous breach of the Code, the following factors should be considered:<br />
• the nature of the breach (or suspected breach)<br />
• the sanction imposed<br />
• how long ago the breach or suspected breach occurred<br />
• the nature of the duties being performed at the time<br />
• the duties of the current employment opportunity<br />
• whether this was a one-off action or part of a pattern of behaviour.<br />
If an applicant is involved in a <strong>misconduct</strong> action that has yet to be finalised, care needs<br />
to taken so as to not prejudge the outcome of any investigation while ensuring the work<br />
related qualities of the employee are appropriate for the duties to be performed. If, after<br />
the assessment of the person’s work-related qualities, the person is a preferred applicant,<br />
the options available include:<br />
• awaiting the outcome of the investigation (if feasible)<br />
• proceeding with the assignment of duties or movement if the proposed breach is<br />
considered minor or the possibility of such a potential breach in the new agency is low<br />
• offering the person a temporary assignment or movement pending the finalisation of<br />
the investigation.<br />
Referee reports and <strong>misconduct</strong><br />
It is a common practice for APS agencies to ask applicants seeking promotion or movement<br />
at level to obtain a referee report from their current supervisor or manager.<br />
The IPPs apply to giving a referee comment regardless of whether there are issues with<br />
the employee such as underperformance, poor attendance or <strong>misconduct</strong>.<br />
Supervisors should avoid any comment in a referee report that is unrelated to the employee’s<br />
work performance. Any comment that is made must be relevant to the selection criteria.<br />
In determining whether to disclose information on a prior or suspected breach of the<br />
Code, factors that must be taken into account include:<br />
• the nature of the breach or suspected breach<br />
• how long ago the breach occurred<br />
• the duties being undertaken at the time and the proposed duties of the new work<br />
• the employee’s conduct since the breach.<br />
Where an employee whose conduct is under investigation asks a referee from the agency<br />
to provide a report and the investigation may be relevant to the work-related qualities<br />
70 HANDLING MISCONDUCT
equired for the job, the referee could indicate that there have been concerns as yet unresolved<br />
where the situation warrants it. To go beyond that could be seen as prejudging the situation,<br />
particularly where there is no clear determination of <strong>misconduct</strong>.<br />
Where an investigation has concluded that the employee did not breach the Code, it<br />
would be inappropriate for the referee to make any reference to the investigation, unless<br />
the investigation resulted in some findings relating to matters of performance or attitude<br />
which, although not amounting to <strong>misconduct</strong>, may nevertheless reflect on the employee’s<br />
suitability for the employment opportunity in question.<br />
If a breach of the Code has been found to have occurred, and where the breach is relevant,<br />
the referee may include an outline of the circumstances surrounding the breach and<br />
comment on the relevance of the matter to the position.<br />
Whether the investigation is in progress or has been concluded, an employee’s conduct,<br />
or <strong>misconduct</strong>, record is relevant only to the extent that the circumstances have a bearing<br />
on the duties and the qualities required for the position for which the reference is being<br />
sought.<br />
In all cases, the weight to be given to records of determined <strong>misconduct</strong> will diminish<br />
over time.<br />
Key points for agency guidance material<br />
Agency guidance material should include information, some of which can be drawn from<br />
this chapter, on the following:<br />
• agency recordkeeping procedures and appropriate contact points within the agency<br />
• the agency’s policies on the retention and disposal and associated records policies<br />
including clear delineation of roles and responsibilities of <strong>misconduct</strong><br />
• guidance on consideration of <strong>misconduct</strong> records for selection committees. Such<br />
guidance may more appropriately be placed in the agency’s recruitment and selection<br />
procedures—for example, including a requirement, as part of the pre-engagement or<br />
movement checking process, for prospective employees to declare any relevant<br />
<strong>misconduct</strong> matters.<br />
Where an APS agency is considering employing a current or former employee of another<br />
APS agency, it could seek the (prospective) employee’s consent, as part of the pre-engagement<br />
or movement checking process, to the agency seeking information about suspected or<br />
determined <strong>misconduct</strong> and Code of Conduct processes from, and disclosure by, the<br />
person’s current or former agency.<br />
Agencies should consider advising in applicant information packs that this information<br />
may be requested if there are concerns raised about the applicant’s conduct from<br />
information provided during the selection process.<br />
PART THREE 71
8. REVIEW OF ACTIONS<br />
Non-SES employees who have been found to have breached the Code and who wish to<br />
challenge either the determination that a breach has occurred or the sanction imposed<br />
(except in the case of termination of employment), may lodge an application for a review<br />
of actions under Division 5.3 of the Regulations (reproduced in Appendix 1). A decision<br />
to suspend an employee can also be the subject of review.<br />
A decision to temporarily re-assign the employee’s duties would be subject to review only<br />
where the temporary reassignment was made under section 25 of the PS Act (i.e. not<br />
imposed as a sanction under section 15) and involved any of the circumstances provided<br />
for in Schedule 1 of the Regulations. 22<br />
An application for review of a determination that an employee has breached the Code, or<br />
of a sanction imposed for a breach of the Code, must be made to the Merit Protection<br />
<strong>Commission</strong>er (regulation 5.24(2)). Applications for the review of decisions relating to<br />
suspension will generally be made in the first instance to the agency head (regulation<br />
5.24(1)). The making of an application for review does not operate to stay the action<br />
(regulation 5.36).<br />
While there is no strict time limit applying to the lodgement of a request for a review of<br />
action (relating to a determination that the Code has been breached or consequent<br />
sanction imposed), the Merit Protection <strong>Commission</strong>er is entitled to regard actions that<br />
are more than 12 months as non-reviewable (regulation 5.23(3)(a)).<br />
An employee who has been dismissed is not able to request a review of a decision to<br />
terminate the employment but may have the right under the unfair dismissal provisions<br />
of the Workplace Relations Act 1996 to apply to the AIRC for a remedy.<br />
22<br />
Clause 10 of Schedule 1 of the Regulations provides that:<br />
An action that determines, under section 25 of the Act, duties of an APS employee, or the place or places where they are to be<br />
performed, unless the action involves:<br />
a. a reduction in classification<br />
b. a relocation to another place<br />
c. a promotion that meets the following criteria:<br />
i. the affected employee was an applicant for the promotion<br />
ii. the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules<br />
iii. there were serious defects in the selection process<br />
d. the assignment to an employee of duties that the employee could not reasonably be expected to perform.<br />
PART THREE 73
The <strong>Commission</strong> can provide information to agencies and individuals about the review<br />
of actions process. However, the <strong>Commission</strong> cannot give advice on whether an application<br />
for review should be lodged in a particular case or particular circumstances. Further<br />
information can be obtained from the nearest <strong>Commission</strong> office or the <strong>Commission</strong><br />
website www.apsc.gov.au.<br />
The review process<br />
An application must be lodged directly with the Merit Protection <strong>Commission</strong>er if:<br />
• the application is for review of a finding of a breach of the Code<br />
• the application is for review of a sanction, other than termination, imposed for breach<br />
of the Code.<br />
In other cases, the initial application should be lodged with the agency head or their<br />
delegate. The Merit Protection <strong>Commission</strong>er is not authorised to investigate applications<br />
for suspension which have not first been investigated by an agency unless:<br />
• the relevant agency head was personally or directly involved in the action under review<br />
• the employee believes that it is not appropriate, because of the seriousness or sensitivity<br />
of the action, for the agency head to deal with the application<br />
• the employee believes they are being victimised or harassed for having made a previous<br />
application for review of another action.<br />
The request for a review to the Merit Protection <strong>Commission</strong>er must be in writing and<br />
should state why the review is being sought.<br />
Lodging an application for review does not operate to stay the action for which the<br />
review is sought. Once lodged, the application can be withdrawn at any time.<br />
In general terms, any review that is conducted will address the following issues:<br />
• whether the agency’s Code procedures comply with the Directions<br />
• whether those procedures were substantially complied with by the agency in the course<br />
of determining whether there was a breach of the Code<br />
• on the evidence available, what act or acts were committed by the relevant employee<br />
• did they amount to a breach of the Code<br />
• if yes, was the sanction appropriate in all the circumstances?<br />
When a review is completed, the Merit Protection <strong>Commission</strong>er makes a report to the<br />
agency head and, if the Merit Protection <strong>Commission</strong>er is satisfied that the relevant<br />
action was in some way unreasonable, the Merit Protection <strong>Commission</strong>er may recommend<br />
that the agency:<br />
74 HANDLING MISCONDUCT
• reconsider or change any relevant decision<br />
• change its rules or procedures<br />
• take some other appropriate action.<br />
If a recommendation is not accepted, the Merit Protection <strong>Commission</strong>er may report the<br />
matter to the relevant Minister, the Prime Minister or the Parliament.<br />
The applicant will be given a copy of the Merit Protection <strong>Commission</strong>er’s report to the<br />
agency head. While there is no further right of review under the PS Act or the Regulations,<br />
the affected employee could seek judicial review under the general law or the Administrative<br />
Decisions ( Judicial Review) Act 1977.<br />
Key points for agency guidance material<br />
While it is not a PS Act requirement to notify employees of their review rights, it would<br />
be good practice to include some information in agency guidance material. The guidance<br />
material could also provide links to the advice on the <strong>Commission</strong>’s website www.apsc.<br />
gov.au. This site contains advice provided by the Merit Protection <strong>Commission</strong>er and<br />
contacts for the <strong>Commission</strong>’s regional offices.<br />
PART THREE 75
9. QUALITY ASSURANCE AND STREAMLINING THE PROCESS<br />
The earlier chapters of this good practice guide have presented information on good practice<br />
in relation to the processes surrounding the reporting and management of <strong>misconduct</strong>.<br />
This chapter outlines a number of mechanisms agencies can employ to ensure that the<br />
processes of handling <strong>misconduct</strong> are appropriate and provides advice as to where the<br />
process for handling <strong>misconduct</strong> can be streamlined to ensure that processes avoid<br />
unnecessary delay. A number of common pitfalls are also identified to alert agencies to<br />
potential problem areas.<br />
Quality assurance<br />
Agencies should consider implementing the following key quality assurance mechanisms<br />
in the process for handling <strong>misconduct</strong>:<br />
• having several options available for employees to report suspected <strong>misconduct</strong><br />
• providing detailed guidance to the managers making the important initial decision of<br />
whether the suspected <strong>misconduct</strong> is a minor matter, or a more serious one, to ensure<br />
fairness and consistency in the treatment of suspected <strong>misconduct</strong><br />
• ensuring that the decision maker who determines whether a breach has occurred has<br />
the necessary skills, experience and resources including knowledge of the investigation<br />
process<br />
• having a final checking process so that the decision maker is able ensure that the<br />
required processes and paperwork associated with the investigation and determination<br />
are complete prior to the final determination being made<br />
• considering whether a separate person should be delegated the power to determine the<br />
appropriate sanction<br />
• limiting the number of people in the agency with the delegation to determine a sanction<br />
to only a few people<br />
• making available detailed, clear guidance material to all employees about the reporting<br />
and management of suspected <strong>misconduct</strong>.<br />
PART THREE 77
There are a range of other quality assurance mechanisms that can be advisable for<br />
agencies to use as part of their governance procedures.<br />
• Conduct periodic training focussing on the relevance of the Code to employees’ dayto-day<br />
work including the use of realistic scenarios directly relevant to the work of the<br />
agency. This training should also include information on the options for reporting<br />
<strong>misconduct</strong> within the agency.<br />
• Regularly review agency written guidance material on reporting and dealing with<br />
<strong>misconduct</strong> to ensure it is kept up to date, including contact details of relevant people<br />
• Make judicious use of case studies based on situations that have occurred in the agency<br />
to assist in educating employees about how different types of <strong>misconduct</strong> are dealt with,<br />
and what sanction can be expected in relation to different types of <strong>misconduct</strong>. Case<br />
studies should not include any information that could identify the individuals involved.<br />
The publicising of recent cases can have significant deterrent effects, but their use<br />
should be approached with caution given the requirements of the Privacy Act 1988. It<br />
is important to de-identify cases as much as possible but it is likely that there would be<br />
a lower risk that such use/disclosure of personal information would be contrary to the<br />
Information Privacy Principles (IPPs) in the Privacy Act 1988 if the affected employee<br />
has been made aware that the information may be used or disclosed in line with the<br />
disclosure provisions in IPP2 both in general information to all employees and at the<br />
time of the investigation. An alternative approach suggested by the Office of the<br />
Federal Privacy <strong>Commission</strong>er is that in compiling case studies for training or educative<br />
purposes amalgamated scenarios or ‘dummy’ facts could be used. Reported AIRC cases<br />
examining termination of employment decisions are public documents and can be<br />
used freely in any educative material.<br />
• It is important to note that withholding a person’s name may not be sufficient to<br />
protect that person’s identity. Personal information can include any information or<br />
opinion from which a person’s identity is apparent or may be ‘reasonably ascertained’.<br />
For example, in a small agency or in a rural or regional area, information about an<br />
employee’s work area or location or even the type of complaint may be sufficient to<br />
identify that person. This should be taken into account when considering whether and<br />
what information to release to a third party.<br />
• Integrate a requirement, tailored to be appropriate to different responsibilities at different<br />
levels, to demonstrate a knowledge and commitment to the Values and the Code into<br />
an agency’s performance management system.<br />
• Include questions, in a periodic staff survey, to establish the level of employee knowledge<br />
on how to report <strong>misconduct</strong>, their confidence in being protected from victimisation<br />
and discrimination if they report <strong>misconduct</strong>, whether or not they have observed serious<br />
<strong>misconduct</strong> in the last 12 months, of the Code generally, and their views on whether<br />
their colleagues and managers behave in accordance with the Code. If an agency would<br />
like assistance with the formulation of questions please contact the Director of the<br />
State of the <strong>Service</strong> team on (02) 6202 3575 or Stateofthe<strong>Service</strong>@apsc.gov.au.<br />
78 HANDLING MISCONDUCT
• Establish a centralised function within the agency that collects data and monitors<br />
progress of <strong>misconduct</strong> cases. This would include the establishment of a data base of<br />
cases including sanctions to assist in ensuring consistency of handling cases and in<br />
sanction setting. This function would also act as a quality control mechanism (e.g.<br />
checking on timeliness of cases) and be able to provide data to senior management on<br />
the number and types of <strong>misconduct</strong> cases for strategic monitoring purposes, the<br />
numbers of reviews sought and the outcomes of any such reviews.<br />
• Ensure regular reports to the agency executive or senior management team on important<br />
issues such as any obvious trends, or any systemic issues arising or recommendations<br />
for action.<br />
• Periodically conduct a file audit of a sample of <strong>misconduct</strong> files to evaluate if correct<br />
procedures and recordkeeping requirements are being followed.<br />
Avoiding unnecessary delay<br />
Each agency head is required to establish procedures to investigate and determine suspected<br />
<strong>misconduct</strong>. Those procedures must, at a minimum, be consistent with the <strong>Public</strong> <strong>Service</strong><br />
<strong>Commission</strong>er’s Directions. These minimum procedures may be quite brief, and essentially<br />
concerned only with the requirement, before any determination is made, to provide the<br />
employee with:<br />
• full details of the suspected breach of the Code<br />
• a reasonable opportunity to make a statement in relation to the suspected breach.<br />
The Directions stipulate only that the process for determining whether an APS employee<br />
has breached the Code must be carried out with as little formality and as much expedition<br />
as a proper consideration of the matter allows. Ensuring the timeliness of <strong>misconduct</strong><br />
action is important for a number of reasons. Delays not only affect the agency and the<br />
employee, but can also be a factor considered in external review. If the case goes to review<br />
after an excessively lengthy process, particularly where a high impact sanction has been<br />
imposed (e.g. termination or a reduction in classification), generally it will be a factor that<br />
will go against the agency’s position unless there are good reasons for the delay.<br />
Understanding the steps in the process for handling<br />
<strong>misconduct</strong><br />
There are a number of ways agencies can minimise the time taken in handling <strong>misconduct</strong>.<br />
Pre-investigation stage (see Chapter 4)<br />
At this stage of a process a manager has become aware that an employee may have<br />
breached the Code and must consider what action, if any, to take. There are a number of<br />
issues influencing timing that should be considered.<br />
PART THREE 79
Formal or informal?<br />
• In many cases, particularly those which are less serious and where the suspected<br />
behaviour of the employee is unintentional or atypical, it may be more effective for<br />
the manager to deal directly and informally with the employee about their conduct.<br />
Authorisation<br />
• Where a decision is taken to move to a formal investigation into the matter, that decision<br />
should be put into operation promptly and a decision maker authorised under the<br />
agency’s procedures as soon as possible. Agencies may find it useful to maintain a pool<br />
of employees who have experience or relevant training in conducting investigations of<br />
this kind, and are familiar with the administrative law principles that underpin them.<br />
• Often the person authorised to make a determination that an employee has breached<br />
the Code is a relatively senior employee. Where the employee authorised to make the<br />
determination concerning suspected <strong>misconduct</strong> is also expected to manage their normal<br />
workload during the course of the investigation, it is often useful to provide that person<br />
with assistance to conduct the basic evidence and information gathering, interview<br />
witnesses, draft correspondence, and even draft the final report for the decision maker.<br />
Guidance material can make clear that this is an acceptable approach.<br />
Notification<br />
• An employee is entitled to be told of the details of the suspected breach of the Code<br />
before the determination is made. However, they do not have to be advised of this by<br />
the person authorised to make the determination. An agency could advise an employee<br />
that they are being investigated and set out the basis for that (e.g. element(s) of the<br />
Code suspected of being breached, a description of the suspected behaviour, evidence<br />
available at the time) at the same time that they advise the employee of the identity of<br />
the person authorised to make the determination.<br />
Suspension<br />
Agencies can elect to have any decision about suspension made by a person other than<br />
the person authorised to determine whether there has been a breach of the Code. Giving<br />
this responsibility to another employee will:<br />
• allow the person conducting the investigation to focus clearly on the question of whether<br />
the employee has breached the Code<br />
• reduce the concerns of the employee about possible prejudgement<br />
• allow the agency to develop a core of experience dealing with the special concerns raised<br />
by questions of whether an employee should be suspended.<br />
<strong>Public</strong> <strong>Service</strong> Regulations 3.10(4) and (5) requires that the person exercising the suspension<br />
delegation retains contact with the Code investigation to ensure that they can properly<br />
review the decision to suspend the employee, or to revoke the suspension in the event that<br />
80 HANDLING MISCONDUCT
• a determination is made that the employee did not breach the Code<br />
• a sanction is imposed on the employee in relation to a relevant determination that the<br />
employee breached the Code.<br />
Investigation stage (see Chapter 5)<br />
Investigations into suspected breaches of the Code are fundamentally concerned with<br />
gathering material relevant to the question being determined. A number of aspects of<br />
this process can affect timeliness.<br />
Procedural fairness<br />
From time to time some concern is expressed that <strong>misconduct</strong> investigations are unduly<br />
delayed by the need to comply with procedural fairness. In particular, the requirement to<br />
provide the employee with an opportunity to put their case, and who exactly should be<br />
given the opportunity to comment, are advanced as the reasons for delay in some cases.<br />
However, it is important to note that:<br />
• procedural fairness will not always require that the material be put in writing. In many<br />
cases, for example, it can be put to the employee at an interview and discussed at that<br />
time<br />
• nor will it always require that the employee be given an extended period of time to<br />
consider the material, or that the employee should be allowed to decide the timetable<br />
for providing comment.<br />
The rule requires that the employee be given reasonable opportunity, not a perfect<br />
opportunity. What will amount to a reasonable opportunity will vary according to the<br />
circumstances, but it is not what the employee under investigation believes is a reasonable<br />
opportunity. Rather, this is determined by an objective standard; that is, what a<br />
reasonable person would believe was a reasonable opportunity given the circumstances.<br />
The person making the determination should also bear in mind that procedural fairness<br />
is not owed to everyone involved in an investigation. The obligation arises only in relation<br />
to those people for whom the decision might affect a right or interest. Usually this will<br />
be confined to the subject employee rather than, for example, witnesses questioned in the<br />
course of an investigation.<br />
While there is an obligation to provide a reasonable opportunity to comment, the guiding<br />
principle is that this needs to be balanced against the seriousness of the suspected conduct<br />
and the other circumstances that apply. It is suggested that, in most cases, no more than<br />
seven days would need to be allowed as the period in which to provide such comments.<br />
PART THREE 81
Statements<br />
One of the most common forms of information gathering in any investigation is the use<br />
of interviews, whether in relation to the suspect employee, a complainant, or witnesses. It<br />
is good practice to ensure, where possible, that the record of such interviews is complete<br />
and agreed with by the interviewee.<br />
Usually this agreement will be recorded by the interviewee signing the record in some<br />
form to indicate that they have read and agreed with it or by an exchange of correspondence<br />
(perhaps by email). If a person is provided with material in draft for comment and a<br />
reasonable timeframe for response beyond which the material will be regarded as final, it<br />
may be regarded as final and further correspondence need not be entered into.<br />
Where the interviewee disputes some matters in the draft record, it is not always<br />
necessary to reach agreement. Where, for example:<br />
• agreement appears to be unlikely<br />
• agreement would take an unwarranted period of time to achieve<br />
• the matter concerned is of limited relevance to the issue being investigated<br />
it is open to the person conducting the investigation to place their version of the interview<br />
on the record and add a statement (often provided by the interviewee) to that record,<br />
noting the areas of disagreement.<br />
Privacy requirements/obligations<br />
Misconduct investigations typically gather information from employees and other people<br />
involved in a matter.<br />
Information that tends to establish that a suspect employee has, or may have, breached<br />
the APS Code of Conduct would be regarded as personal information.<br />
Personal information relating to a <strong>misconduct</strong> investigation must be handled within the<br />
boundaries set by the Privacy Act 1988 and the PS Act. Within the context of obligations<br />
of APS agencies under the Privacy Act 1988, personal information applies only to<br />
individuals and the content must be about that individual.<br />
The collection, storage, use and disclosure of information of this kind is regulated by the<br />
Information Privacy Principles (IPPS) under section 14 of the Privacy Act 1988. It may<br />
be useful for agencies to develop standard approaches in their guidance material. For<br />
example:<br />
• It is good practice for all APS agencies to put employees on notice, using a valid IPP 2<br />
notice, which makes employees aware upon commencing employment with the agency<br />
as to the potential use and disclosure of Code of Conduct information.<br />
• At the beginning of an investigation about a complaint, agencies should (among other<br />
things) ensure that the employee who is the subject of an investigation is familiar with<br />
82 HANDLING MISCONDUCT
the agency’s policy in regard to complaint handling and answer any questions the<br />
employee may have at this time about the policy and the complaint under investigation.<br />
For example, IPP 2 notices should be as specific as is reasonably possible to ensure that<br />
employees are aware to whom their personal information may be disclosed.<br />
Agencies should advise the employee being investigated, in writing, that a complaint<br />
investigation is underway, what the complaint is about and that personal information<br />
about them may be disclosed to others, where necessary and appropriate.<br />
Where an investigation has been completed and part of the recommendation is for the<br />
employee’s personal information to be released to another person, body or agency<br />
(including the complainant), the individual concerned should be advised and provided<br />
with an opportunity to respond to the proposed release of their personal information<br />
prior to release. In other words, the principles of natural justice should be applied. A<br />
reasonable timeframe, understood by both parties, should be allowed for this response<br />
and should be sufficient to allow, for example, the employee to seek advice as necessary.<br />
Records should be kept of any decisions to disclose personal information about an<br />
employee to another person, body or agency.<br />
• When a person conducting an investigation is interviewing a witness they might use a<br />
form of words such as:<br />
This is an investigation being carried out under procedures established by the agency<br />
head under section 15(3) of the <strong>Public</strong> <strong>Service</strong> Act for the purpose of determining<br />
whether another employee has breached the APS Code of Conduct. A record of<br />
this meeting will be kept and may be released in whole or in part for the purposes<br />
of making that determination. Do you consent to the release of that information? If<br />
not, do you understand that it may be released where necessary in any event?<br />
These words could then also be written into the record of the interview.<br />
Sample clauses on disclosing information for inclusion in agency code of conduct procedures<br />
are at Appendix 6.<br />
The circumstances in which personal information gathered in the course of a <strong>misconduct</strong><br />
investigation may need to be used and disclosed are as follows:<br />
Providing information to a complainant about the outcome of a Code of Conduct investigation<br />
Where a complainant has raised issues about an APS employee’s actions or behaviour, or<br />
the processes, actions or conduct of an agency, information about the outcome of an<br />
investigation may need to be provided to the complainant. It should be possible in most<br />
circumstances to give a complainant adequate information about the way their complaint<br />
has been handled without disclosing personal information about an employee.<br />
In this situation, there is a further requirement to achieve an appropriate balance between<br />
the needs of the employee, the agency and the complainant in relation to the use and<br />
PART THREE 83
disclosure of personal information. Agency heads (or their delegates) should exercise<br />
judgement on a case by case basis when considering what personal information about an<br />
employee should be released to the complainant.<br />
There are a number of factors to consider before releasing personal information. The primary<br />
consideration for agencies should be that disclosure of personal information under IPP<br />
11 regarding <strong>misconduct</strong> is managed in such a way that an employee’s identity is not<br />
revealed unless it is necessary, appropriate and reasonable to do so. This is particularly<br />
important where the complainant is employed in the same agency.<br />
A sample letter advising complainants on the outcome of a Code of Conduct investigation<br />
is at Appendix 7.<br />
For further information on the circumstances in which an agency can lawfully disclose<br />
personal information about an employee to a complainant please refer to the <strong>Commission</strong>’s<br />
Circular No 2008/3: Providing information on Code of Conduct investigation outcomes to<br />
complainants. If an agency is in doubt as to whether it can lawfully disclose personal<br />
information about an employee to a complainant in a particular case, it should seek legal<br />
advice.<br />
Sharing information between APS agencies about Code of Conduct matters for employment<br />
related purposes<br />
This could include where an APS agency is considering employing a current, or former,<br />
employee from another APS agency, where that employee:<br />
• has been subject to a finalised Code of Conduct investigation<br />
• has been notified that they are under investigation for an alleged or suspected breach<br />
of the APS Code<br />
• is the subject of an allegation of a breach of the APS Code that has not been addressed.<br />
The purposes for sharing information between APS agencies about Code of Conduct<br />
matters for employment related purposes includes for selection/recruitment processes<br />
and progression of Code of Conduct investigations.<br />
This can involve:<br />
• the ‘use’ of information for another purpose other than which it was collected (IPP<br />
10.1(a))<br />
• the ‘use’ of information for a purpose directly related to the purpose for which the<br />
information was obtained (IPP 10.1(e))<br />
• ‘disclosure’ of information from one APS agency to another APS agency (IPP 11.1(b)).<br />
The person the information is about must be informed about and freely consent to the<br />
use and/or disclosure of their personal information. A ‘consent’ from a person who has no<br />
84 HANDLING MISCONDUCT
APPENDIX 1<br />
other option but to consent is not adequate for exceptions under IPPs 10.1(a) or 11.1(b).<br />
For further information on the steps agencies can take to lawfully ensure that employees<br />
are reasonably likely to be aware of the circumstances in which Code of Conduct information<br />
may be disclosed to another APS agency refer to the <strong>Commission</strong>’s Circular No 2007/2:<br />
The Privacy Act and employee information concerning Code of Conduct matters.<br />
If an agency is in doubt as to whether it can lawfully release information to another agency<br />
in a particular case, it should seek legal advice. If an agency is in doubt as to whether it<br />
can lawfully collect and use information in a particular case, it should seek legal advice.<br />
Burden of proof<br />
As a civil administrative matter, the decision that an employee has breached the Code is<br />
made on the ‘balance of probabilities’—that is on the basis of what is most likely to have<br />
happened.<br />
It will always be a matter of judgement for the decision maker about the extent to which<br />
they follow up on every line of inquiry that arises during the investigation, or only those<br />
which are of substance and which, if established, will have a direct impact on the decision<br />
to be made. In other words, if the available evidence strongly suggests a decision one way<br />
or the other, it may not be necessary to follow up on a particular question if the resolution<br />
of that question will not ‘tip the balance’.<br />
Avoiding common pitfalls<br />
There are a number of common pitfalls that are often faced by employees conducting a<br />
<strong>misconduct</strong> action.<br />
Agencies may wish to highlight these in any agency guidance along with any other pitfalls<br />
experienced within the agency.<br />
Things to avoid<br />
Employees involved in a <strong>misconduct</strong> action should avoid the following:<br />
• confusing the roles of the decision maker who determines whether a breach has occurred,<br />
and the investigator—the decision maker retains overall responsibility for the processes<br />
associated with making the determination (see Chapters 5 and 6)<br />
• not giving the accused employee and/or witnesses the opportunity to respond to new<br />
and/or conflicting evidence during the investigative process (see Chapter 5)<br />
• approaching the investigation with the attitude of ‘proving the allegation’ rather than a<br />
disinterested attitude of finding out all the relevant facts and circumstances (i.e. starting<br />
PART THREE 85
with a presumption of guilt)<br />
• inadequate investigation reports that are not clearly structured and do not explicitly<br />
evaluate and weigh-up the available evidence including conflicting evidence<br />
• agency employees making comments about the case that presume the accused employee’s<br />
guilt prior to a determination being made—this type of comment, made particularly<br />
by more senior employees or by a decision maker, can result in the decision being<br />
overturned on review, because of perceptions of bias<br />
• not fulfilling all procedural fairness requirements, in particular, not giving the employee<br />
the opportunity to respond to the full case against them prior to the determination<br />
being made or not giving them the opportunity to respond to the proposed sanction<br />
• not considering information on recent sanctions for broadly similar types of <strong>misconduct</strong><br />
across the agency to ensure greater consistency in sanction setting<br />
• not clearly setting out the reasons for preferring a particular sanction<br />
• poor recordkeeping practices—if key documents and correspondence are missing from<br />
the file this can significantly weaken the agency’s position if the case goes to review<br />
• undue delay.<br />
Key points for agency guidance material<br />
Agency guidance material could include information, some of which can be drawn from<br />
this chapter, on the following:<br />
• references to the agency’s quality assurance mechanisms, including appropriate feedback<br />
processes that can feed into the regular evaluation of the process for handling <strong>misconduct</strong><br />
• advice to employees on how delays can be minimised within the agency’s procedures<br />
• a checklist of common pitfalls identified within the agency.<br />
Agencies may also wish to consider developing templates, checklists and sample letters in<br />
accordance with agency <strong>misconduct</strong> procedures and other related policies. These will assist<br />
investigators and decision makers to more quickly address the administrative and procedural<br />
fairness issues and provide a consistent approach across the agency.<br />
86 HANDLING MISCONDUCT
LEGISLATIVE INSTRUMENTS<br />
APPENDIX 1
Extracts from the <strong>Public</strong> <strong>Service</strong> Act, <strong>Public</strong> <strong>Service</strong><br />
Regulations, the <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>er’s<br />
Directions and the Privacy Act<br />
PUBLIC SERVICE ACT 1999—SECT 10<br />
The APS Values<br />
(1) The APS Values are as follows:<br />
(a) the APS is apolitical, performing its functions in an impartial and professional<br />
manner;<br />
(b) the APS is a public service in which employment decisions are based on merit;<br />
(c) the APS provides a workplace that is free from discrimination and recognises and<br />
utilises the diversity of the <strong>Australian</strong> community it serves;<br />
(d) the APS has the highest ethical standards;<br />
(e) the APS is openly accountable for its actions, within the framework of Ministerial<br />
responsibility to the Government, the Parliament and the <strong>Australian</strong> public;<br />
(f ) the APS is responsive to the Government in providing frank, honest,<br />
comprehensive, accurate and timely advice and in implementing the Government’s<br />
policies and programs;<br />
(g) the APS delivers services fairly, effectively, impartially and courteously to the<br />
<strong>Australian</strong> public and is sensitive to the diversity of the <strong>Australian</strong> public;<br />
(h) the APS has leadership of the highest quality;<br />
(i) the APS establishes workplace relations that value communication, consultation, co<br />
operation and input from employees on matters that affect their workplace;<br />
(j) the APS provides a fair, flexible, safe and rewarding workplace;<br />
(k) the APS focuses on achieving results and managing performance;<br />
(l) the APS promotes equity in employment;<br />
(m) the APS provides a reasonable opportunity to all eligible members of the<br />
community to apply for APS employment;<br />
(n) the APS is a career based service to enhance the effectiveness and cohesion of<br />
Australia’s democratic system of government;<br />
(o) the APS provides a fair system of review of decisions taken in respect of APS<br />
employees.<br />
88 HANDLING MISCONDUCT
PUBLIC SERVICE ACT 1999—SECT 12<br />
Agency Heads must promote APS Values<br />
An Agency Head must uphold and promote the APS Values.<br />
PUBLIC SERVICE ACT 1999—SECT 13<br />
The APS Code of Conduct<br />
1. An APS employee must behave honestly and with integrity in the course of APS<br />
employment.<br />
2. An APS employee must act with care and diligence in the course of APS employment.<br />
3. An APS employee, when acting in the course of APS employment, must treat<br />
everyone with respect and courtesy, and without harassment.<br />
4. An APS employee, when acting in the course of APS employment, must comply with<br />
all applicable <strong>Australian</strong> laws. For this purpose, <strong>Australian</strong> law means:<br />
a. any Act (including this Act), or any instrument made under an Act<br />
b. any law of a State or Territory, including any instrument made under such a law.<br />
5. An APS employee must comply with any lawful and reasonable direction given by<br />
someone in the employee’s Agency who has authority to give the direction.<br />
6. An APS employee must maintain appropriate confidentiality about dealings that the<br />
employee has with any Minister or Minister’s member of staff.<br />
7. An APS employee must disclose, and take reasonable steps to avoid, any conflict of<br />
interest (real or apparent) in connection with APS employment.<br />
8. An APS employee must use Commonwealth resources in a proper manner.<br />
9. An APS employee must not provide false or misleading information in response to a<br />
request for information that is made for official purposes in connection with the<br />
employee’s APS employment.<br />
10. An APS employee must not make improper use of:<br />
a. inside information; or<br />
b. the employee’s duties, status, power or authority in order to gain, or seek to gain, a<br />
benefit or advantage for the employee or for an other person.<br />
11. An APS employee must at all times behave in a way that upholds the APS Values<br />
and the integrity and good reputation of the APS.<br />
12. An APS employee on duty overseas must at all times behave in a way that upholds<br />
the good reputation of Australia.<br />
13. An APS employee must comply with any other conduct requirement that is prescribed<br />
by the regulations.<br />
APPENDIX ONE 89
PUBLIC SERVICE REGULATIONS 1999<br />
Reg 2.1 Duty not to disclose information (Act s 13)<br />
For the purposes of subsection 13(13) of the Act, an APS employee, except in the course<br />
of his or her duties as an APS employee or with the Agency Head’s express authority, must<br />
not give or disclose, directly or indirectly, any information about public business or anything<br />
of which the employee has official knowledge.<br />
Note: Under s 70 of the Crimes Act 1914, it is an offence for an APS employee to publish<br />
or communicate the information.<br />
PUBLIC SERVICE ACT 1999—SECTION 15<br />
Breaches of the Code of Conduct<br />
1. An Agency Head may impose the following sanctions on an APS employee in the<br />
Agency who is found (under procedures established under subsection (3)) to have<br />
breached the Code of Conduct:<br />
a. termination of employment<br />
b. reduction in classification<br />
c. re-assignment of duties<br />
d. reduction in salary<br />
e. deductions from salary, by way of fine<br />
f. a reprimand.<br />
2. The regulations may prescribe limitations on the power of an Agency Head to impose<br />
sanctions under subsection 1.<br />
3. An Agency Head must establish procedures for determining whether an APS<br />
employee in the Agency has breached the Code of Conduct. The procedures:<br />
a. must comply with basic procedural requirements set out in <strong>Commission</strong>er’s Directions<br />
b. must have due regard to procedural fairness<br />
c. may be different for different categories of APS employees.<br />
4. The <strong>Commission</strong>er must issue directions in writing for the purposes of subsection 3.<br />
5. An Agency Head must take reasonable steps to ensure that every APS employee in<br />
the Agency has ready access to the documents that set out the procedures referred to<br />
in subsection 3.<br />
90 HANDLING MISCONDUCT
PUBLIC SERVICE REGULATIONS 1999<br />
Reg 3.10 Suspension from duties (Act s. 28)<br />
1. An Agency Head may suspend an APS employee employed in the Agency from duties if<br />
the Agency Head believes on reasonable grounds that:<br />
a. the employee has, or may have, breached the Code of Conduct; and<br />
b. the employee’s suspension is in the public, or the Agency’s, interest.<br />
2. The suspension may be with remuneration.<br />
3. If the suspension is to be without remuneration, the period without remuneration is to be:<br />
a. not more than 30 days<br />
b. if exceptional circumstances apply—a longer period.<br />
4. The Agency Head must review the suspension at reasonable intervals.<br />
5. The Agency Head must immediately end the suspension if the Agency Head no longer<br />
believes on reasonable grounds:<br />
a. that the APS employee has, or may have, breached the Code of Conduct<br />
b. that the employee’s suspension is in the public, or the Agency’s, interest.<br />
6. The Agency Head must immediately end the suspension if a sanction has been imposed<br />
on the APS employee for the relevant breach of the Code of Conduct.<br />
7. In exercising powers under this regulation, the Agency Head must have due regard to<br />
procedural fairness unless the Agency Head is satisfied on reasonable grounds that, in<br />
the particular circumstances, it would not be appropriate.<br />
Reg 5.24 Application for primary review<br />
1. An affected employee may apply in writing to the relevant Agency Head for primary<br />
review of a reviewable action.<br />
2. However, the application must be made to the Merit Protection <strong>Commission</strong>er if the<br />
application is for review of:<br />
a. a determination that the affected employee has breached the Code of Conduct<br />
b. a sanction imposed for breach of the Code of Conduct.<br />
3. Also, the employee may apply in writing to the Merit Protection <strong>Commission</strong>er for<br />
review of the action if:<br />
a. the Agency Head was directly involved in the action<br />
b. it is not appropriate, because of the seriousness or sensitivity of the action, for the<br />
Agency Head to deal with the application<br />
c. the action is claimed to be victimisation or harassment of the employee for having<br />
made a previous application for review of action.<br />
APPENDIX ONE 91
4. The application must state briefly:<br />
a. why the review is sought<br />
b. if a particular outcome is sought—the outcome sought.<br />
Examples of outcomes<br />
1. Reconsideration of the action.<br />
2. Re-assignment of duties.<br />
Reg 5.36 Making of application does not operate as stay<br />
The making of an application for review of an APS action under this Division does not<br />
operate to stay the action.<br />
PUBLIC SERVICE COMMISSIONER’S DIRECTIONS 1999<br />
Chapter 5—Basic Requirements for Procedures for Determining Breaches of<br />
the Code of Conduct<br />
5.1 Purpose of Chapter 5<br />
The purpose of this Chapter is to set out the basic procedural requirements that must be<br />
complied with by the procedures established by an Agency Head under subsection 15<br />
(3)of the Act for determining whether an APS employee in the Agency has breached the<br />
Code of Conduct.<br />
Note: The requirements set out in this Chapter and the procedures established under<br />
subsection 15 (3) of the Act apply only in relation to a suspected breach of the Code of<br />
Conduct by an APS employee in respect of which a determination is to be made. Not all<br />
suspected breaches of the Code of Conduct may need to be dealt with by way of a<br />
determination. In particular circumstances, another way of dealing with a suspected<br />
breach of the Code may be more appropriate.<br />
5. 2 Information to be given to employee before determination is made<br />
Before any determination is made in relation to a suspected breach of the Code of<br />
Conduct by an APS employee, the employee must:<br />
a. be informed of:<br />
i. the details of the suspected breach of the Code of Conduct (including any<br />
variation of those details)<br />
ii. the sanctions that may be imposed on the employee under subsection 15 (1) of<br />
the Act (including any limitations on that power contained in regulations made<br />
for the purposes of subsection 15 (2) of the Act)<br />
b. be given reasonable opportunity to make a statement in relation to the suspected<br />
breach.<br />
92 HANDLING MISCONDUCT
5.3 Determination process to be informal<br />
The process for determining whether an APS employee has breached the Code of<br />
Conduct must be carried out with as little formality and as much expedition as a proper<br />
consideration of the matter allows.<br />
5.4 Person making determination to be independent and unbiased<br />
An Agency Head must take reasonable steps to ensure that the person who determines<br />
whether an APS employee has breached the Code of Conduct is, and appears to be,<br />
independent and unbiased.<br />
5.5 Record of determination<br />
After a determination in relation to a suspected breach of the Code of Conduct by an<br />
APS employee is made, a written record stating whether the employee has been found to<br />
have breached the Code of Conduct must be prepared.<br />
Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.<br />
5.6 Appropriate procedures if basis of APS employee’s engagement in an<br />
agency changes or employee moves to a different agency<br />
1. This clause applies if:<br />
a. an APS employee in an Agency is suspected of having breached the Code of Conduct<br />
b. before any determination is made in relation to the suspected breach:<br />
i. the basis of the employee’s engagement in the Agency changes<br />
ii. the employee moves to a different Agency.<br />
Note: Examples of a change in the basis of an APS employee’s engagement in an Agency<br />
are as follows:<br />
a. a change from engagement for a specified term, or for the duration of a specified<br />
task, to engagement as an ongoing APS employee<br />
b. a change from engagement for duties that are irregular or intermittent to engagement<br />
as an ongoing APS employee.<br />
2. A determination (if any) in relation to the suspected breach must be made:<br />
a. if the basis of the employee’s engagement in the Agency has changed—in accordance<br />
with the procedures applicable to the basis of the employee’s engagement in the<br />
Agency at the time the process for determining whether the employee has breached<br />
the Code of Conduct is commenced<br />
b. if the employee has moved to a different Agency—in accordance with the procedures<br />
applicable in the Agency to which the employee has moved at the time the process<br />
for determining whether the employee has breached the Code of Conduct is<br />
commenced.<br />
APPENDIX ONE 93
INFORMATION PRIVACY PRINCIPLES (IPPS) UNDER THE<br />
PRIVACY ACT 1988 (CTH)—SECTION 14<br />
Principle 1—Manner and purpose of collection of personal information<br />
1. Personal information shall not be collected by a collector for inclusion in a record or in<br />
a generally available publication unless:<br />
(a) the information is collected for a purpose that is a lawful purpose directly related to<br />
a function or activity of the collector; and<br />
(b) the collection of the information is necessary for or directly related to that purpose.<br />
2. Personal information shall not be collected by a collector by unlawful or unfair means.<br />
Principle 2—Solicitation of personal information from individual concerned<br />
Where:<br />
(a) a collector collects personal information for inclusion in a record or in a generally<br />
available publication; and<br />
(b) the information is solicited by the collector from the individual concerned;<br />
the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure<br />
that, before the information is collected or, if that is not practicable, as soon as practicable<br />
after the information is collected, the individual concerned is generally aware of:<br />
(c) the purpose for which the information is being collected;<br />
(d) if the collection of the information is authorised or required by or under law—the<br />
fact that the collection of the information is so authorised or required; and<br />
(e) any person to whom, or any body or agency to which, it is the collector’s usual<br />
practice to disclose personal information of the kind so collected, and (if known by<br />
the collector) any person to whom, or any body or agency to which, it is the usual<br />
practice of that first mentioned person, body or agency to pass on that information.<br />
Principle 3—Solicitation of personal information generally<br />
Where:<br />
(a) a collector collects personal information for inclusion in a record or in a generally<br />
available publication; and<br />
(b) the information is solicited by the collector:<br />
the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure<br />
that, having regard to the purpose for which the information is collected:<br />
94 HANDLING MISCONDUCT
(c) the information collected is relevant to that purpose and is up to date and complete;<br />
and<br />
(d) the collection of the information does not intrude to an unreasonable extent upon<br />
the personal affairs of the individual concerned.<br />
Principle 4—Storage and security of personal information<br />
A record-keeper who has possession or control of a record that contains personal information<br />
shall ensure:<br />
(a) that the record is protected, by such security safeguards as it is reasonable in the<br />
circumstances to take, against loss, against unauthorised access, use, modification or<br />
disclosure, and against other misuse; and<br />
(b) that if it is necessary for the record to be given to a person in connection with the<br />
provision of a service to the record-keeper, everything reasonably within the power<br />
of the record-keeper is done to prevent unauthorised use or disclosure of information<br />
contained in the record.<br />
Principle 5—Information relating to records kept by record-keeper<br />
1. A record-keeper who has possession or control of records that contain personal<br />
information shall, subject to clause 2 of this Principle, take such steps as are, in the<br />
circumstances, reasonable to enable any person to ascertain:<br />
(a) whether the record-keeper has possession or control of any records that contain<br />
personal information; and<br />
(b) if the record-keeper has possession or control of a record that contains such<br />
information:<br />
(i) the nature of that information;<br />
(ii) the main purposes for which that information is used; and<br />
(iii) the steps that the person should take if the person wishes to obtain access<br />
to the record.<br />
2. A record-keeper is not required under clause 1 of this Principle to give a person<br />
information if the record-keeper is required or authorised to refuse to give that<br />
information to the person under the applicable provisions of any law of the<br />
Commonwealth that provides for access by persons to documents.<br />
3. A record-keeper shall maintain a record setting out:<br />
(a) the nature of the records of personal information kept by or on behalf of the<br />
record-keeper;<br />
(b) the purpose for which each type of record is kept;<br />
(c) the classes of individuals about whom records are kept;<br />
(d) the period for which each type of record is kept;<br />
APPENDIX ONE 95
(e) the persons who are entitled to have access to personal information contained in<br />
the records and the conditions under which they are entitled to have that access; and<br />
(f ) the steps that should be taken by persons wishing to obtain access to that information.<br />
4. A record-keeper shall:<br />
(a) make the record maintained under clause 3 of this Principle available for<br />
inspection by members of the public; and<br />
(b) give the <strong>Commission</strong>er, in the month of June in each year, a copy of the record so<br />
maintained.<br />
Principle 6— Access to records containing personal information<br />
Where a record-keeper has possession or control of a record that contains personal<br />
information, the individual concerned shall be entitled to have access to that record,<br />
except to the extent that the record-keeper is required or authorised to refuse to provide<br />
the individual with access to that record under the applicable provisions of any law of the<br />
Commonwealth that provides for access by persons to documents.<br />
Principle 7— Alteration of records containing personal information<br />
1. A record-keeper who has possession or control of a record that contains personal<br />
information shall take such steps (if any), by way of making appropriate corrections,<br />
deletions and additions as are, in the circumstances, reasonable to ensure that the record:<br />
(a) is accurate; and<br />
(b) is, having regard to the purpose for which the information was collected or is to be<br />
used and to any purpose that is directly related to that purpose, relevant, up to date,<br />
complete and not misleading.<br />
2. The obligation imposed on a record-keeper by clause 1 is subject to any applicable<br />
limitation in a law of the Commonwealth that provides a right to require the<br />
correction or amendment of documents.<br />
3. Where:<br />
(a) the record-keeper of a record containing personal information is not willing to<br />
amend that record, by making a correction, deletion or addition, in accordance with<br />
a request by the individual concerned; and<br />
(b) no decision or recommendation to the effect that the record should be amended<br />
wholly or partly in accordance with that request has been made under the<br />
applicable provisions of a law of the Commonwealth;<br />
the record-keeper shall, if so requested by the individual concerned, take such steps (if<br />
any) as are reasonable in the circumstances to attach to the record any statement<br />
provided by that individual of the correction, deletion or addition sought.<br />
96 HANDLING MISCONDUCT
Principle 8—Record-keeper to check accuracy etc of personal information<br />
before use<br />
A record-keeper who has possession or control of a record that contains personal<br />
information shall not use that information without taking such steps (if any) as are, in<br />
the circumstances, reasonable to ensure that, having regard to the purpose for which the<br />
information is proposed to be used, the information is accurate, up to date and complete.<br />
Principle 9—Personal information to be used only for relevant purposes<br />
A record-keeper who has possession or control of a record that contains personal<br />
information shall not use the information except for a purpose to which the information<br />
is relevant.<br />
Principle 10—Limits on use of personal information<br />
1. A record-keeper who has possession or control of a record that contains personal<br />
information that was obtained for a particular purpose shall not use the information<br />
for any other purpose unless:<br />
(a) the individual concerned has consented to use of the information for that other<br />
purpose;<br />
(b) the record-keeper believes on reasonable grounds that use of the information for<br />
that other purpose is necessary to prevent or lessen a serious and imminent threat<br />
to the life or health of the individual concerned or another person;<br />
(c) use of the information for that other purpose is required or authorised by or under law;<br />
(d) use of the information for that other purpose is reasonably necessary for enforcement<br />
of the criminal law or of a law imposing a pecuniary penalty, or for the protection<br />
of the public revenue; or<br />
(e) the purpose for which the information is used is directly related to the purpose for<br />
which the information was obtained.<br />
2. Where personal information is used for enforcement of the criminal law or of a law<br />
imposing a pecuniary penalty, or for the protection of the public revenue, the recordkeeper<br />
shall include in the record containing that information a note of that use.<br />
Principle 11—Limits on disclosure of personal information<br />
1. A record-keeper who has possession or control of a record that contains personal<br />
information shall not disclose the information to a person, body or agency (other than<br />
the individual concerned) unless:<br />
APPENDIX ONE 97
(a) the individual concerned is reasonably likely to have been aware, or made aware<br />
under Principle 2, that information of that kind is usually passed to that person,<br />
body or agency;<br />
(b) the individual concerned has consented to the disclosure;<br />
(c) the record-keeper believes on reasonable grounds that the disclosure is necessary to<br />
prevent or lessen a serious and imminent threat to the life or health of the<br />
individual concerned or of another person;<br />
(d) the disclosure is required or authorised by or under law; or<br />
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of<br />
a law imposing a pecuniary penalty, or for the protection of the public revenue.<br />
2. Where personal information is disclosed for the purposes of enforcement of the<br />
criminal law or of a law imposing a pecuniary penalty, or for the purpose of the<br />
protection of the public revenue, the record-keeper shall include in the record<br />
containing that information a note of the disclosure.<br />
3. A person, body or agency to whom personal information is disclosed under clause 1 of<br />
this Principle shall not use or disclose the information for a purpose other than the<br />
purpose for which the information was given to the person, body or agency.<br />
98 HANDLING MISCONDUCT
APPENDIX 2<br />
SUGGESTED AGENCY PROCEDURES UNDER<br />
SECTION 15(3) OF THE PUBLIC SERVICE ACT 1999
Procedures for determining breaches of Code of Conduct<br />
I, [name of Agency Head], [position and name of Agency], establish these Procedures under<br />
subsection 15 (3) of the <strong>Public</strong> <strong>Service</strong> Act 1999.<br />
Dated<br />
1. Application of procedures<br />
These Procedures must be complied with in determining whether an APS employee has<br />
breached the Code of Conduct.<br />
Note: These Procedures apply only in relation to a suspected breach of the Code of Conduct by an<br />
APS employee in respect of which a determination is to be made. Not all suspected breaches of the<br />
Code of Conduct may need to be dealt with by way of a determination. In particular circumstances,<br />
another way of dealing with a suspected breach of the Code may be more appropriate.<br />
2. Selection of decision maker<br />
Subject to the Agency Head having made a selection, the person who determines whether<br />
an APS employee has breached the Code of Conduct is to be selected by [name or title of<br />
person].<br />
3. Formal hearing not required<br />
For the purpose of determining whether an APS employee in an Agency has breached<br />
the Code of Conduct, a formal hearing is not required.<br />
4. Information to be given to employee before determination is made<br />
1. Before a determination is made in relation to a suspected breach of the Code of Conduct<br />
by an APS employee, the employee must:<br />
(a) be informed of:<br />
i the details of the suspected breach of the Code of Conduct (including any<br />
variation of those details)<br />
ii the sanctions that may be imposed on the employee under subsection 15 (1)<br />
of the Act (including any limitations on that power contained in regulations<br />
made for the purposes of subsection 15 (2) of the Act)<br />
(b) be given reasonable opportunity to make a statement, in writing, in relation to the<br />
suspected breach within 7 days or any longer period as is allowed.<br />
2. If the employee makes a written statement within 7 days (or, if allowed, any longer<br />
period) of being given the opportunity to do so, the employee must also be given the<br />
opportunity to make an oral statement in relation to the suspected breach.<br />
3. An employee who does not make a written statement in relation to the suspected breach<br />
is not, only for that reason, to be taken to have admitted committing the suspected<br />
breach.<br />
100 HANDLING MISCONDUCT
5. Determination process to be informal<br />
The process for determining whether an APS employee has breached the Code of Conduct<br />
must be carried out with as little formality and as much expedition as a proper consideration<br />
of the matter allows.<br />
6. Person making determination to be independent and unbiased<br />
1. An Agency Head must take reasonable steps to ensure that the person who determines<br />
whether an APS employee has breached the Code of Conduct is, and appears to be,<br />
independent and unbiased.<br />
2. In particular, a person must not determine whether the employee has breached the<br />
Code of Conduct if the person has previously made a report in relation to any of the<br />
matters suspected of constituting a breach by the employee of the Code of Conduct.<br />
7. Action that may be taken if breach found to have occurred<br />
1. If a determination is made that an APS employee has breached the Code of Conduct,<br />
the employee may be counselled or a sanction may be imposed on the employee under<br />
section 15 of the <strong>Public</strong> <strong>Service</strong> Act 1999.<br />
2 If a sanction is imposed on the employee, the employee must be given a written<br />
statement setting out the reasons for the determination and the imposition of the<br />
sanction.<br />
8. Record of determination<br />
After a determination in relation to a suspected breach of the Code of Conduct by an<br />
APS employee is made, a written record stating whether the employee has been found to<br />
have breached the Code of Conduct must be prepared.<br />
Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this<br />
clause.<br />
9. Appropriate procedures if basis of APS employee’s engagement in an<br />
agency changes or employee moves to a different agency<br />
1. This clause applies if:<br />
(a) an APS employee in an Agency is suspected of having breached the Code of Conduct<br />
(b) before any determination is made in relation to the suspected breach:<br />
i the basis of the employee’s engagement in the Agency changes<br />
ii the employee moves to a different Agency.<br />
APPENDIX TWO 101
Note: Examples of a change in the basis of an APS employee’s engagement in an Agency are as<br />
follows:<br />
(a) a change from engagement for a specified term, or for the duration of a<br />
specified task, to engagement as an ongoing APS employee<br />
(b) a change from engagement for duties that are irregular or intermittent to<br />
engagemlfsent as an ongoing APS employee.<br />
2. A determination (if any) in relation to the suspected breach must be made:<br />
(a) if the basis of the employee’s engagement in the agency has changed-in accordance<br />
with the procedures applicable to the basis of the employee’s engagement in the<br />
agency at the time the process for determining whether the employee has breached<br />
the Code of Conduct is commenced<br />
(b) if the employee has moved to a different agency-in accordance with the procedures<br />
applicable in the agency to which the employee has moved at the time the process<br />
for determining whether the employee has breached the Code of Conduct is<br />
commenced.<br />
102 HANDLING MISCONDUCT
EMPLOYEE SUSPENSION CHECKLIST<br />
APPENDIX 3
EMPLOYEE SUSPENSION CHECKLIST<br />
Deciding whether or not to suspend 23<br />
Is it in the public interest, or the agency’s interest, to remove the employee from the<br />
workplace?<br />
Has re-assignment of duties been considered as an option?<br />
Is it clear that the decision maker is not prejudging and is seen as not prejudging<br />
whether the employee has breached the Code?<br />
When imposing suspension<br />
Will the suspension be with pay or without pay?<br />
Has there been an opportunity for the employee to make a statement before the<br />
suspension is implemented?<br />
Has the employee been advised of the possible length of the suspension and of his/her<br />
ongoing status (e.g. attendance at training courses previously booked, entitlement to<br />
apply for vacancies, access to the work premises)?<br />
Where suspension is without pay<br />
Has the employee been advised about possible access to leave credits?<br />
Has the employee been advised about the length of the period of suspension and the<br />
fact that he/she could seek outside employment?<br />
During suspension<br />
Is the suspension being reviewed at reasonable intervals?<br />
Are there exceptional circumstances warranting the extending of unpaid suspension<br />
beyond 30 days?<br />
23<br />
Regulation 3.10 requires that an Agency Head may suspend an APS employee employed in the agency from duties if the<br />
Agency Head believes on reasonable grounds that:<br />
a. the employee has, or may have, breached the Code of Conduct; and<br />
b. the employee’s suspension is in the public, or the agency’s interest.<br />
104 HANDLING MISCONDUCT
Where it is determined that the employee suspended<br />
without pay has not breached the Code of Conduct<br />
Is salary forgone during suspension to be reinstated or is there a case for not doing so?<br />
Is it appropriate to re-credit any paid recreation leave or long service leave applied for<br />
during suspension?<br />
Is it appropriate to take outside earnings into account before reinstating forgone salary?<br />
Terminating the suspension<br />
Has a sanction been imposed on the employee for the relevant breach? OR<br />
Does the agency head no longer believe that the employee has or may have breached<br />
the code? OR<br />
Does the agency head no longer believe that the suspension is in the public interest or<br />
in the agency’s interest?<br />
At the conclusion of the period of suspension<br />
Is it necessary to decide whether the period of suspension counts as service?<br />
Has the appropriate documentation been completed?<br />
APPENDIX THREE 105
APPENDIX 4<br />
RELEVANT RECORDS IN NATIONAL ARCHIVES OF AUSTRALIA<br />
ADMINISTRATIVE FUNCTIONS DISPOSAL AUTHORITY, FEBRUARY 2000
RECORDS RELATING TO CODE OF CONDUCT<br />
CASES—ADMINISTRATIVE FUNCTIONS<br />
DISPOSAL AUTHORITY 24<br />
PERSONNEL—Counselling<br />
‘The activities associated with giving advice or guidance to an employee for various reasons’.<br />
Entry No Description of records Disposal Action<br />
1702 Records documenting general counselling of<br />
staff. Includes<br />
• personal counselling ….<br />
• work performance counselling<br />
• counselling for minor breaches to the Code of<br />
Conduct<br />
[For counselling relating to disciplinary action<br />
use PERSONNEL—discipline]<br />
Destroy 2 years after<br />
action completed<br />
PERSONNEL—Performance management<br />
Sometimes minor conduct issues are dealt with in performance management contexts.<br />
Also conduct issues can be taken into account in assessing performance and related<br />
decisions such as salary advancement or the payment of pay bonuses etc.<br />
Entry No Description of records Disposal Action<br />
1734 Performance agreements with individual<br />
employees. Includes final version of agreement,<br />
notes from meetings with employees and<br />
assessment and review reports.<br />
Destroy 2 years after<br />
agreement is<br />
superseded<br />
24<br />
<br />
108 HANDLING MISCONDUCT
PERSONNEL—Discipline<br />
‘The activities and actions associated with the disciplinary process. Includes investigation,<br />
charges, formal inquiries, punishment and appeals’<br />
Entry No Description of records Disposal Action<br />
1704 Records documenting investigations of<br />
<strong>misconduct</strong> (e.g. a breach of the Code of<br />
Conduct) by either the agency or an external<br />
body, which result in disciplinary action being<br />
taken<br />
1705 Records documenting allegations into<br />
<strong>misconduct</strong> where no follow-up investigation is<br />
made (i.e. where allegations are proved to be<br />
frivolous or vexatious).<br />
1706 Records documenting investigations of<br />
<strong>misconduct</strong> which are investigated, either by<br />
the agency or by an external authority, and<br />
where allegations are proved to be unfounded<br />
and the employee has requested the retention<br />
of the records.<br />
1707 Records documenting investigations of<br />
<strong>misconduct</strong> which are investigated, either by<br />
the agency or by an external authority, and<br />
where allegations are proved to be unfounded<br />
and the employee has not requested the<br />
retention of the records<br />
Destroy 5 years after<br />
action completed<br />
Destroy 18 months<br />
after action completed<br />
Destroy 75 years after<br />
date of birth of<br />
employee or 7 years<br />
after last action,<br />
whichever is later, or<br />
when requested by the<br />
employee<br />
Destroy 18 months<br />
after investigation<br />
completed<br />
PERSONNEL—Reviews (Decisions)<br />
Entry No Description of records Disposal Action<br />
1759 Records documenting reviews of actions, other<br />
than reviews of promotion decisions, either<br />
carried out within the agency or by an external<br />
authority.<br />
Destroy 5 years after<br />
action completed<br />
APPENDIX FOUR 109
LEGAL SERVICES—Litigation<br />
Entry No Description of records Disposal Action<br />
1585 Records documenting litigation matters where<br />
legal precedents are set<br />
1586 Records relating to litigation matters that do<br />
not set legal precedents<br />
Retain as national<br />
archives<br />
Destroy 7 years after<br />
action ceases<br />
LEGAL SERVICES—Advice<br />
Entry No Description of records Disposal Action<br />
1570 Records documenting all other advice [i.e. than<br />
re interpretation of an agency’s own legislation<br />
etc ] received from an internal or external legal<br />
service provider<br />
Destroy 5 years after<br />
action completed.<br />
RECORDS OF MATTERS THAT MIGHT TRIGGER<br />
A CODE OF CONDUCT INVESTIGATION<br />
Agencies may keep a variety of records on matters that may sometimes give rise to formal<br />
Code of Conduct investigations. Such records include records of investigations of grievances<br />
and allegations by whistleblowers, infringements of rules, security or privacy breaches.<br />
PERSONNEL—Employment conditions<br />
Entry No Description of records Disposal Action<br />
1719 Attendance records for employees where agency<br />
agreements or individual employee agreements<br />
do not allow for the payment of overtime.....<br />
Destroy 2 years after<br />
action completed<br />
110 HANDLING MISCONDUCT
PERSONNEL—Grievances<br />
‘The activities associated with the handling and resolution of grievances. Includes handling<br />
complaints over perceived discrimination… or those arising over work environment, …peers,<br />
supervisors or subordinates.’<br />
Entry No Description of records Disposal Action<br />
1722 Records documenting formal grievances lodged<br />
by an individual employee and considered either<br />
internally within the organisation and/or by an<br />
external body. Includes notes of meetings, reports<br />
and recommendations. For records covering<br />
disciplinary action resulting from a grievance use<br />
PERSONNEL—discipline<br />
Destroy 5 years after<br />
action completed<br />
PERSONNEL—Infringements<br />
‘The activities associated with handling breaches of rules. Includes driving or traffic infringements<br />
and infringements of an organisation’s intellectual property.’<br />
Entry No Description of records Disposal Action<br />
1723 Records documenting infringements by an<br />
employee.<br />
[For infringements that lead to disciplinary action<br />
use PERSONNEL—discipline]<br />
Destroy 18 months<br />
after action<br />
completed<br />
LEGAL SERVICES—Infringements<br />
Entry No Description of records Disposal Action<br />
1581 Records documenting infringements or breaches<br />
of mandatory standards, rules or statutory<br />
requirements that do not proceed to litigation.<br />
Includes notifications of breaches and<br />
investigations and negotiations.<br />
Destroy 7 years<br />
after action ceases<br />
APPENDIX FOUR 111
Alleged Privacy and Security breaches<br />
The retention of records relating to alleged privacy breaches, security breaches etc is dealt<br />
with other sections of AFDA eg the sections on information management, property<br />
management, equipment and stores and technology and communications.<br />
In broad terms, records relating to minor security incidents or breaches or alleged privacy<br />
breaches can be destroyed after a period ranging from 5 years after an incident to 7 years<br />
after action is completed.<br />
[Records relating to minor security breaches or incidents relating to property can be<br />
destroyed 5 years after the incident; records relating to alleged privacy breaches can be<br />
destroyed after 5 years after the investigation and records relating to breaches relating to<br />
classified material can be destroyed 5 years after the last action; reports on leaks and<br />
investigation into alleged security breaches relating to technology and communications and<br />
referral of those breaches to law enforcement authorities to law enforcement authorities—<br />
destroy 7 years after action is completed.]<br />
However, records of major security breaches or incidents (e.g. which result in the laying<br />
of charges), including records of referral to law enforcement authorities, are retained as<br />
national archives.<br />
RECORDS KEPT FOR THE DURATION OF AN<br />
EMPLOYEE’S CAREER<br />
PERSONNEL—Security<br />
‘The activities associated with measure taken to protect people, premises, equipment or<br />
information from accidental or intentional damage or from unauthorised access. Includes the<br />
security classification of personnel and criminal record checks’.<br />
Entry No Description of records Disposal Action<br />
1766 Records documenting security checks (vetting)<br />
carried out as part of pre-engagement and preemployment<br />
checks, or periodic reviews.<br />
Destroy 5 years after<br />
separation from the<br />
APS or 6 years after<br />
the date of the last<br />
clearance on file,<br />
whichever is sooner.<br />
112 HANDLING MISCONDUCT
PERSONNEL—Employment conditions<br />
‘The activities associated with managing the general conditions of employment for personnel’<br />
Entry No Description of records Disposal Action<br />
1709 Records documenting the consolidated<br />
employment history of all ongoing employees<br />
…and SES employees from initial appointment<br />
and subsequent promotions and details of higher<br />
duties undertaken. Includes:<br />
• details of assigned duties (initial and subsequent<br />
variations)<br />
• probation reports<br />
• declarations of pecuniary interests<br />
• undertakings to preserve official secrets.<br />
1711 Records documenting the appointment of nonongoing<br />
employees<br />
1715 Records documenting the reduction in<br />
classification of an APS employee either with or<br />
without the employees consent<br />
Destroy 75 years after<br />
date of birth of<br />
employee or 7 years<br />
after last action,<br />
whichever is later<br />
Destroy 7 years after<br />
termination of<br />
appointment<br />
Destroy 75 years after<br />
date of birth of<br />
employee or 7 years<br />
after last action,<br />
whichever is later<br />
PERSONNEL—Salaries<br />
Employee pay history records may document the carrying out of sanctions on an<br />
employee whom it has been determined has breached the Code of Conduct and/or<br />
contain information about periods of suspension if this was not on full pay.<br />
Entry No Description of records Disposal Action<br />
1761 Records documenting the payment of employee’s<br />
salaries. Includes:<br />
• Employee pay history records<br />
Destroy 75 years<br />
after date of birth<br />
or 7 years after last<br />
action, whichever is<br />
later<br />
APPENDIX FOUR 113
PERSONNEL—Separations<br />
Entry No Description of records Disposal Action<br />
1767 Records documenting the separation of ongoing<br />
employees and SES employees. Includes:<br />
• resignation<br />
• dismissal<br />
1768 Records documenting the termination of a nonongoing<br />
employee before the completion of a<br />
specified term of engagement<br />
Destroy 75 years<br />
after date of birth<br />
or 7 years after last<br />
action, whichever<br />
is later<br />
Destroy 7 years<br />
after termination<br />
114 HANDLING MISCONDUCT
CHECKLIST OF KEY POINTS FOR AGENCY<br />
GUIDANCE MATERIAL<br />
APPENDIX 5
AGENCY GUIDANCE MATERIAL—CHECKLIST<br />
Overview of a process for handling <strong>misconduct</strong> (Chapter 2)<br />
an employee’s responsibility to uphold the Values and the Code<br />
what constitutes <strong>misconduct</strong> illustrated by agency specific examples within and outside<br />
of the workplace<br />
the relationship between any agency-based codes and the APS Code<br />
the preferred approach to the interaction between managing <strong>misconduct</strong> and<br />
underperformance within the agency<br />
the rights of an employee who is being investigated in relation to a suspected breach<br />
of the Code.<br />
links to agency material/training on the Code available to employees and links to<br />
<strong>Commission</strong> material if relevant (e.g. APS Values and Code of Conduct in Practice: a<br />
guide to official conduct for APS employees and agency heads).<br />
Reporting suspected <strong>misconduct</strong> (Chapter 3)<br />
encouragement of employees to report suspected <strong>misconduct</strong> as part of their duty as<br />
an APS employee<br />
the different options available to employees to report <strong>misconduct</strong><br />
the protections available to employees who report <strong>misconduct</strong><br />
how to treat or collect any evidence prior to reporting. It could include advice that<br />
employees:<br />
– make notes on what they have seen or heard<br />
– provide written records on any action the employee has taken<br />
– keep any relevant documents and not make any written annotations on them<br />
– report the matter but otherwise keep the matter confidential.<br />
Considering a report of suspected <strong>misconduct</strong> (Chapter 4)<br />
identifying who is responsible for deciding whether suspected <strong>misconduct</strong> will be<br />
handled through the <strong>misconduct</strong> procedures or alternate procedures<br />
providing examples of suspected <strong>misconduct</strong> that the agency considers should usually<br />
be handled under the <strong>misconduct</strong> procedures<br />
116 HANDLING MISCONDUCT
identifying alternative methods of handling suspected <strong>misconduct</strong><br />
determining when a <strong>misconduct</strong> action should commence once a report of suspected<br />
<strong>misconduct</strong> has been received<br />
the recordkeeping requirements for employee discussions/counselling sessions and<br />
what to do if the employee’s conduct does not improve or deteriorates further<br />
circumstances in which an employee may be suspended, with or without pay, or assigned<br />
other duties<br />
procedures for managing suspension and assignment of duties that identify who is<br />
responsible for decision making.<br />
Investigative process (Chapter 5)<br />
outline agency procedures for appointment, alert the decision maker (and investigator<br />
if roles are separated) to the need to be vigilant about circumstances that might give<br />
rise to claims of bias, and what to do if such claims are made<br />
direct the decision maker (and investigator if roles are separated) to comply with the<br />
agency’s section 15(3) procedures<br />
describe agency procedures for conducting an investigation including advice on issues<br />
such as preparing records of discussion and taking witness statements<br />
provide advice on the different approaches to determining the scope of an investigation<br />
stress the importance of complying with the requirements of procedural fairness and<br />
other administrative law principles<br />
note the legislative requirement (generally reiterated in the agency section 15(3)<br />
procedures) that the investigation should be carried out with as little formality and as<br />
much expedition as a proper consideration of the matter allows<br />
emphasise the need for planning the investigation prior to commencement and,<br />
subsequently, in taking time to review the process to ensure all available relevant<br />
evidence has been collected<br />
note the important principles in weighing up the evidence and the key features of the<br />
written report<br />
cover the handling of situations where evidence does not support <strong>misconduct</strong> having<br />
occurred<br />
provide contact points for support and advice.<br />
APPENDIX FIVE 117
The determination and sanction (Chapter 6)<br />
advice on the role of the decision maker<br />
advice for the decision maker on the breach about preparing a decision record—<br />
agencies may wish to consider developing a template<br />
advice on how to handle a case where an employee moves to another agency<br />
an explanation of the sanctions that can be used<br />
the factors to be considered in determining an appropriate sanction<br />
some agency-specific examples of when particular sanctions may be appropriate<br />
the importance of consistency<br />
references to sources of advice such as data bases, HR personnel<br />
handling the process of notifying the employee of a proposed sanction.<br />
Recordkeeping and access to records (Chapter 7)<br />
agency recordkeeping procedures and appropriate contact points within the agency<br />
the agency’s policies on the retention and disposal and associated records policies<br />
including clear delineation of roles and responsibilities of <strong>misconduct</strong><br />
guidance on consideration of <strong>misconduct</strong> records for selection committees. Such<br />
guidance may more appropriately placed in the agencies recruitment and selection<br />
procedures—for example, including a requirement on any personal details form for<br />
prospective employees to declare any <strong>misconduct</strong> procedures.<br />
Review of actions (Chapter 8)<br />
While it is not a PS Act requirement to notify employees of their review rights, it<br />
would be good practice to include some information in agency guidance material.<br />
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APPENDIX 6<br />
SAMPLE CLAUSES FOR INCLUSION IN AGENCY CODE OF<br />
CONDUCT INVESTIGATION PROCEDURES—DISCLOSURE OF<br />
INFORMATION
Below are sample clauses agencies may wish to include in their Code of Conduct<br />
investigation procedures relating to the disclosure of personal information.<br />
Clause 1—defining personal information (refer cIRCULAR<br />
2008/3: Providing information on Code of Conduct<br />
investigation outcomes to complainants, paragraph 10)<br />
Personal information is defined in section 6 of the Privacy Act 1988 as ‘information or an<br />
opinion…about an individual…whose identity is apparent, or can reasonably be ascertained,<br />
from the information or opinion’. {Agency} will ensure that, where appropriate, necessary<br />
and reasonable, personal information about an employee under investigation will remain<br />
confidential.<br />
Clause 1a—sensitive information (refer Circular 2008/3:<br />
Providing information on Code of Conduct investigation<br />
outcomes to complainants, paragraph 12)<br />
Sensitive information is defined in section 6 of the Privacy Act as ‘information or an<br />
opinion about an individual’s racial or ethnic origin or political opinions or membership of a<br />
political association or religious beliefs or affiliations or philosophical beliefs or membership of a<br />
professional or trade association or membership of a trade union or sexual preferences or practices<br />
or criminal record that is also personal information or health information about an individual<br />
or genetic information about an individual that is not otherwise health information’. Special<br />
care should be taken in the handling of sensitive information. Sensitive information<br />
should generally not be disclosed to a third party without the express consent of the<br />
individual concerned.<br />
Clause 2—to whom the personal information may be<br />
disclosed (refer Circular 2008/3: Providing information on<br />
Code of Conduct investigation outcomes to complainants,<br />
paragraph 41)<br />
During the course of a Code of Conduct investigation, or after the investigation is<br />
complete, personal information about an employee under investigation may, where<br />
necessary, appropriate and reasonable, be disclosed to others (in accordance with IPP 2),<br />
including:<br />
• the complainant<br />
• other Commonwealth bodies who have been involved in the matter, such as the<br />
Commonwealth Ombudsman, the Office of the Privacy <strong>Commission</strong>er or the<br />
Inspector-General of Intelligence and Security<br />
• an APS agency where the employee moves or seeks to move in the future.<br />
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Clause 2a—disclosure of personal information to the<br />
employee (refer Circular 2008/3: Providing information on<br />
Code of Conduct investigation outcomes to complainants,<br />
paragraphs 27–33)<br />
During the course of a Code of Conduct investigation, or after the investigation is<br />
complete, in accordance with the principles of procedural fairness, the employee may be<br />
provided with personal information about an individual who is a party to the investigation.<br />
This may include the complainant and any witnesses to the investigation. Disclosure of<br />
information about the complainant and any witnesses to the respondent employee or<br />
others should be done in accordance with the agency’s obligations under the Privacy Act.<br />
Clause 3—opportunity to make a case as to why information<br />
should not be disclosed (refer Circular 2008/3: Providing<br />
information on Code of Conduct investigation outcomes to<br />
complainants, paragraph 31)<br />
Where {agency} is considering disclosing personal information about an employee to<br />
another person, body or agency, the employee will be advised in writing and given the<br />
opportunity to make a case prior to the information being disclosed, as to why their<br />
personal information should not be disclosed. The employee will have {number} days to<br />
provide a case, in writing, to the investigating officer.<br />
Clause 4—agency may disclose general information (refer<br />
Circular 2008/3: Providing information on Code of Conduct<br />
investigation outcomes to complainants, paragraphs<br />
36–40)<br />
Prior to disclosing information about the outcome of a Code of Conduct investigation,<br />
{agency} will have due regard to the Privacy Act 1988, including determining whether<br />
personal information will be used or disclosed and in what circumstances. General<br />
information containing no personal information may be disclosed to others where<br />
{agency} considers it necessary, appropriate and reasonable to do so.<br />
APPENDIX SIX 121
APPENDIX 7<br />
LETTER TO COMPLAINANTS ADVISING THE OUTCOME<br />
OF A CODE OF CONDUCT INVESTIGATION
Disclosure of personal information under IPP 11 regarding <strong>misconduct</strong> should be managed<br />
in such a way that an employee’s identity will not be revealed where it is not necessary,<br />
appropriate and reasonable to do so. This is particularly important where the complainant<br />
is employed at the same agency as the individual under investigation. Care should be<br />
taken not to disclose any additional information about the employee to the complainant.<br />
See paragraphs 34–40 and Attachment B of the <strong>Australian</strong> <strong>Public</strong> <strong>Service</strong> <strong>Commission</strong>’s<br />
Circular 2008/3: Providing information on Code of Conduct investigation outcomes to<br />
complainants, for further information on factors to consider prior to releasing information.<br />
The following is a sample letter to complainants advising the outcome of a Code of<br />
Conduct investigation, which provides information to the complainant without releasing<br />
personal information about the employee. However, agency heads can exercise discretion<br />
to disclose personal information in some circumstances having regard to their IPP<br />
obligations in the handling of this information.<br />
Agencies may choose to provide a greater level of information to the complainant, such<br />
as the reasons for not finding a breach or the sanction that was imposed. Where agencies<br />
consider it inappropriate to provide information regarding the sanction, they may choose<br />
to provide the range of sanctions that have been imposed following similar cases which<br />
occurred in the past.<br />
SAMPLE LETTER<br />
Dear {complainant}<br />
I am writing in relation to your complaint about {nature of complaint}, which you<br />
forwarded to {agency} on {date}.<br />
An investigation of this matter has been conducted in accordance with {agency’s} Code<br />
of Conduct investigation procedures. This investigation has now been finalised.<br />
{May insert one of the following}<br />
As a result, a breach of the Code of Conduct was found and a sanction imposed under<br />
section 15 of the <strong>Public</strong> <strong>Service</strong> Act 1999.<br />
In addition, {agency} will undertake to {remedial action eg, train staff, improve agency<br />
procedures} to ensure this situation does not arise in the future.<br />
OR<br />
As a result, no breach of the Code of Conduct was found in this case. However, {agency}<br />
will undertake to {remedial action eg, train staff, improve agency procedures} to ensure<br />
such a situation does not arise in the future.<br />
OR<br />
As a result, no breach of the Code of Conduct was found in this case.<br />
Please contact, etc.<br />
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