Review of breaches of the Code of Conduct
Role of the Merit Protection Commissioner
The Merit Protection Commissioner is an independent statutory office holder established under section 49 of the Public Service Act 1999 (the Act). Among other functions, the Merit Protection Commissioner conducts reviews of employment-related decisions and other actions affecting individual Australian Public Service (APS) employees.
The Merit Protection Commissioner is assisted by staff of the Australian Public Service Commission.
Breaches of APS Code of Conduct
The APS Code of Conduct is in section 13 of the Act. The code sets out the standards of personal behaviour expected of APS employees in their relationships with the Government, the public and their colleagues. If, after an investigation by their agency, an employee is found to have breached the code, a sanction, ranging from a reprimand to termination of employment, may be imposed.
An employee may be suspended from duty while their agency investigates whether or not they have breached the code.
Review of code breaches and sanctions
Generally reviews of employment actions and decisions are undertaken first by the agency (primary review) with the right of a secondary review by the Merit Protection Commissioner (see Review of actions).
However, in the case of findings relating to Code of Conduct breaches, the legislation provides for the primary review to be conducted by the Merit Protection Commissioner.
This applies to a finding that an APS employee has breached the code and to sanctions imposed as a result of that finding.
A decision to terminate an employee’s employment is not reviewable by the Merit Protection Commissioner.
Review of suspension decisions
A decision to suspend an employee from duty may also be reviewed. In this case, the application must be made in the first instance to the employee’s agency head. The Merit Protection Commissioner is able to conduct a secondary review once the matter has been considered by the agency.
There are circumstances in which an application for review of a suspension decision can be made directly to the Merit Protection Commissioner (see Review of actions).
Making an application for review does not prevent an agency from proceeding with an action, or implementing a decision, that is subject to a review application.
Who is eligible?
Current APS employees, with the exception of the Senior Executive Service, are eligible to apply for review.
Time limits for review applications
On 2 August 2010, changes to the Public Service Regulations came into effect that alter the time limits for making an application for review.
The changes are designed to better meet the policy objectives that reviews be conducted quickly, fairly and impartially and that productive and harmonious workplaces be encouraged.
There will be a transition period in which the time limits for review will vary. This will depend on the date of the action, or decision, which the employee wishes to have reviewed. The critical date is 2 August 2010.
Before 2 August 2010
For Code of Conduct decisions made before 2 August 2010, an employee must apply for a review within 12 months of the decision.
Applications received outside that timeframe will only be reviewed if there are exceptional circumstances to explain the delay in making the application.
From 2 August 2010
Code of Conduct decisions made on or after 2 August 2010 are subject to revised time limits. The time limits are:
- For applications for primary review of a decision that an employee has breached the Code of Conduct – 60 days from the determination of the breach
- For applications for primary review of a sanction imposed for breaching the Code of Conduct – 60 days from the imposition of the sanction.
Applications received outside that timeframe will only be reviewed if there are exceptional circumstances to explain the delay in making the application.
Further details are on the new time limits are available on the website at the following pages:
How do you apply for review?
An application for review to the Merit Protection Commissioner should be addressed to:
Review Manager
Australian Public Service Commission
PO Box 20636
World Square Post Office
Sydney NSW 2002
The review application must be made in writing and state:
- why the review is sought
- if a particular outcome is sought, the outcome sought.
How will your application for review be handled?
Reviews conducted by the Merit Protection Commissioner are required to have regard to procedural fairness, be conducted in private and be finished as quickly, and with as little formality, as a proper consideration of the matter allows.
First, staff assisting the Commissioner will acknowledge the receipt of your application and advise you whether it has been accepted. Then, the reviewer will ask your agency for copies of all relevant papers.
In some cases, it may be possible to conduct the review solely by an examination of the papers.
Where necessary, the reviewer may investigate further by seeking additional information from your agency and by interviewing you and/or other persons.
While you are welcome to have a person support you throughout the review you are not able to be represented by another person. If you wish to have someone represent you, you need to make a formal request to the Merit Protection Commissioner stating your reasons.
In cases involving breaches of the code a review will address:
- whether your agency’s procedures for determining breaches of the code comply with Chapter 5 of the Public Service Commissioner’s Directions (in broad terms, this requires agencies to observe procedural fairness)
- whether your agency substantially complied with those procedures in your case
- whether there is enough evidence that you committed the act or acts found to have breached the code
- if there is, whether that act or acts amounted to a breach of the code
- if they did, whether the sanction imposed on you was appropriate in the circumstances.
Outcome of the review
The Merit Protection Commissioner can make recommendations to your agency head about the matters under review. The Merit Protection Commissioner cannot impose an outcome on your agency or substitute a different decision for that made by your agency.
When the review is finished you will be advised of the result and what recommendation the Commissioner has made to your agency.
If it is concluded that the agency has not acted wrongly, the Commissioner will explain to you why that view was reached.
On the other hand, if the Merit Protection Commissioner is satisfied that the decision under review was in some way unreasonable, the Commissioner may recommend that the agency:
- set aside the decision and consider whether the process should be re-done, before another delegate
- vary the decision
- change its procedures
- take some other appropriate action.
The Commissioner cannot force an agency to do what is recommended. However:
- Agencies usually act on the Commissioner’s recommendations and are required to give reasons for their decisions.
- If the Commissioner is not satisfied with the response to one of the recommendations, the Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.
What if you are still not satisfied?
There is no further right of administrative review under the Act or the Regulations.
To take the matter further, you would need to apply to a court for judicial review, under the general law or the Administrative Decisions (Judicial Review) Act 1977. In such cases, it would be prudent to seek independent legal advice.
Who to contact
Inquiries should be directed to the Review Team, Australian Public Service Commission Sydney, on phone: 02 8239 5330 or by email to review@apsc.gov.au.
