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Last updated: 30 November 1999

Public Service Act 1999 Advice No. 5: Breaches of the Code of Conduct

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts

Introduction

This advice is one of a series of advices being issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999.

2 The purpose of this advice is to outline the framework, under section 15 of the new PS Act, for handling suspected breaches of the Code of Conduct, including the requirement for Agency Heads to establish procedures for determining whether an APS employee has breached the Code of Conduct. The advice also discusses some issues that agencies may wish to consider in establishing their procedures.

Background

3 The framework for dealing with misconduct was contained in sections 55 to 63T of the Public Service Act 1922 (the old Act). Under these provisions, the grounds for taking action were "failure to fulfil one's duty" or a criminal offence. Misconduct action consisted of a process in which:

an authorised officer considered the available information to determine whether a charge should be laid;
an inquiry officer conducted an investigation into the charge laid, and determined an appropriate sanction where the charge was found to be proven;
an appeal to a Disciplinary Appeal Committee was available in respect of the inquiry officer's findings or the sanction imposed, except where a minor penalty was imposed or, alternatively, where dismissal was the penalty. In the latter case, remedy could be sought from the Australian Industrial Relations Commission, under the unfair dismissal provisions of the Workplace Relations Act 1996.

4 Detailed guidance on the application of the old disciplinary provisions was contained in the Discipline Handbook 1988. (This publication remains relevant for those cases, described below, in which a charge is laid before 5 December 1999.)

5 The old Act (section 63B) made detailed provision for the imposition of suspension with or without pay and transfer to other duties pending the outcome of the misconduct process.

Changes under the New Legislation

6 The two most significant changes to the misconduct provisions are a changed definition of misconduct ("a breach of the Code of Conduct") and the requirement for Agency Heads to develop procedures for determining whether or not an employee has breached the Code of Conduct.

7 The APS Code of Conduct, contained in section 13 of the new PS Act, sets out the standards of conduct required of APS employees. While there has been no substantive change to the Code that was introduced through regulation on 15 March 1998, its structure is slightly different. Subsections 13(1) to 13(12) of the new PS Act reflect the Code that was included in old subregulation 7(1) to 7(12) and a definition of Australian law in subsection 13(4). Subsection 13(13) provides, in addition, that an APS employee must comply with any other conduct requirement that is prescribed by regulation. It is expected that old subregulation 7(13) concerning unauthorised disclosures will be incorporated into the new PS Regulations.

8 The following sanctions may be imposed where a breach has been determined (s. 15(1) of the new PS Act):

termination of employment; reduction in classification; re-assignment of duties;
reduction in salary;
deductions from salary, by way of a fine (It is expected that a regulation will limit the fine to a maximum of 2% of the employee's annual salary*);
a reprimand.

9 Subsection 15(3) of the new PS Act requires Agency Heads to establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct. These procedures must comply with the procedural requirements set out in Commissioner's Directions (to be issued shortly) and must have due regard to procedural fairness. Documents describing the procedures must be readily accessible to employees.

Suspension

10 Section 28 of the new PS Act provides for regulations to be made in relation to suspension from duty, with or without pay. It is expected that the regulations will provide for the following Agency Head powers and obligations:

to suspend an employee where there is a reasonable belief that he or she has breached the Code of Conduct and where it would be in the public or the Agency's interest to do so;
to determine whether the suspension should be with or without remuneration:
- it is expected that the maximum period of suspension without pay will be 30 days, unless there are exceptional circumstances. Exceptional circumstances will not be defined, but could include: where an employee has been charged with having committed a criminal offence and is waiting to have the charge heard and determined, and where an employee has appealed against a conviction and is waiting to have the appeal heard;
to review the suspension at reasonable intervals;
to end the suspension immediately a sanction has been imposed, where there is no longer a belief that the employee has breached the Code of Conduct, or where it is no longer in the public or the agency's interest to continue the suspension; and
to exercise these powers with due regard to procedural fairness, unless the Agency Head is satisfied on reasonable grounds that, in particular circumstances, it would not be appropriate (e.g. where there is an imminent and serious threat to the safety of other staff if suspension were to be delayed).

*Agencies will need to consider carefully the common law meaning of 'salary' as applied to the Agency's particular remuneration arrangements, including Certified Agreements and Australian Workplace Agreements (AWAs).

What is misconduct?

11 A breach of the Code of Conduct will constitute misconduct. It should be noted that the Commissioner's Directions, which provide the basic requirements for agency procedures, will make it clear that not every suspected breach must be dealt with by way of a determination. In some circumstances, there may be another way of dealing with a suspected breach, for example through counselling or other management action.

12 The conduct may include conduct outside as well as at the workplace - as long as there is a real connection between the conduct and its effect on the workplace. Each element of the Code should be examined to identify the relevant element(s) that may have been breached. In relation to a criminal offence, for example, consideration should be given to whether the behaviour compromised the integrity and the good reputation of the APS. The impact of the conduct on the employee's duties remains relevant.

13 Non-SES employees who have been found to have breached the Code and who wish to challenge either the determination that a breach has occurred or the sanctions imposed (except where termination is the sanction) may lodge an application for a review of actions. Separate advice is being issued on review of actions (Advice Number 13). It should be noted that the regulations are expected to require that an application for review in these circumstances be lodged directly to the Merit Protection Commissioner, without proceeding first through an agency-level review process. An employee who has been dismissed continues to have a right to apply to the AIRC for a remedy.

Implications for agencies.

14 The main implication for agencies is the requirement to have in place, by 5 December 1999, a set of procedures that will operate from that date for handling suspected breaches of the Code. Suggested procedures are attached to this advice. These procedures may be adopted by agencies, including on an interim basis, until alternative procedures have been finalised. The procedures were developed in consultation with the Australian Government Solicitor (AGS) and then settled by the Office of Legislative Drafting (OLD). They are a later version of the draft procedures which were circulated at the COMNET meeting in Canberra on 28 October 1999, having been amended to reflect the wording of the Commissioner's Directions on determining breaches of the Code of Conduct. If you wish to contact AGS please contact Joan Bonsey (AGS) telephone (02) 6246 1233.

15 The PECTA Act requires certain cases of suspected "pre-commencement" misconduct (i.e. misconduct occurring before 5 December 1999) to be dealt with in different ways. Case management will differ according to whether:

misconduct charges have been laid before 5 December 1999 but have not been brought to finality by that date; or
misconduct charges have not been laid before 5 December.

(A) Cases where charges have been laid before 5 December 1999

16 Where charges have been laid under the old Act prior to 5 December, but the case has not been finalised, it is expected that the provisions of the old Act will apply until the case is brought to finality. This means that, for those specific cases, the two tier process, the appeals, suspension and the sanction provisions for officers and employees will apply until the case is brought to finality.

(B) Cases where misconduct may have occurred before 5 December 1999 but no action has been taken before 5 December 1999

17 Where no charge has been laid before 5 December 1999, the provisions of the new PS Act will apply, even though the misconduct occurred before 5 December. In such cases, a decision will need to be made in accordance with s.10(3) of the PECTA Act that the conduct in question both was misconduct under the old Act (which includes a breach of the old regulations) and would, had it occurred after 5 December 1999, constitute a breach of the Code of Conduct under the new PS Act. Separate advice (Number 23), transmitting legal opinion from the Australian Government Solicitor on the handling of these cases, is being distributed.

(C) Cases where a suspected breach of the Code occurs after 5 December 1999

18 These cases will be dealt with under agencies' new procedures. The procedures may be different for ongoing and non-ongoing employees. It should be noted that the Commissioner's Directions are to be seen as minimum requirements and are not expected to make a distinction between the procedural requirements for dealing with ongoing and non-ongoing staff. The procedures should be expressed in terms of determining whether a breach of the Code of Conduct has occurred. It should be noted that criminal offences which impact on the employee's duties are included as a basis for commencing a process for determining whether a breach of the Code has occurred.

New Agency procedures

19 Agency Heads must ensure that there is procedural fairness in determining whether an employee has breached the Code of Conduct and generally in the use of suspension powers. The Commissioner's Directions are expected to direct that before a determination is made in relation to whether the employee has breached the Code of Conduct, the employee must:

be informed of:
- the details of the suspected breach (including any variation of those details); and
- the sanctions that may be imposed under section 15 of the Act and the regulations; and
be given reasonable opportunity to make a statement in relation to the suspected breach.

20 The Australian Government Solicitor has advised that an Agency Head's responsibility to establish procedures for determining whether a breach of the Code of Conduct has occurred includes responsibility for establishing the procedures by which the person who determines whether a breach has occurred is selected or is otherwise identified. Such procedures should clearly provide for the selection of an identified person for determining whether there has been a breach eg. 'Subject to the Agency Head having made a selection, the person who determines whether a breach of the Code of Conduct has occurred will be selected by [name or title of person]'.

21 Agencies may wish to decide whether, and to what extent (if at all), they may want to elaborate on the suggested procedures (attached), noting that the procedures are limited to determining whether a suspected breach of the Code of Conduct has occurred. In the suggested procedures attached, the selection of the person who will determine whether there has been a breach will be made by a person, such as the Human Resources Manager, unless the Agency Head has otherwise made that selection. An Agency Head may choose any person to make that selection but the procedures should clearly identify one person who can select a decision-maker in relation to any APS employee in the agency suspected of breaching the Code.

22 Issues agencies may wish to consider, if they are developing their own procedures, include, but are not limited to:

different processes for different categories of employees e.g. ongoing and non-ongoing employees, SES and non-SES employees;
the different roles of managers and decision makers in the misconduct process;
- it should be noted that the Directions are expected to require that Agency Heads take reasonable steps to ensure that the decision maker is independent and unbiased. Agency Heads will need to consider whether it would be appropriate to delegate their powers to determine a suspected breach (under s.15(3)) to a person outside the agency if it is not possible to satisfy this requirement from within the agency.
an abbreviated procedure in cases where the employee admits to breaching the Code;
the imposition of particular sanctions;
the relationship between misconduct action and other people management issues such as performance management, whistleblowing and workplace harassment;
arrangements for temporary assignment of duties, pending determination of whether there has been a breach of the Code:
- in exercising the power to temporarily assign, consideration will need to be given to the best method of ensuring that the decision maker does not prejudge the issue of a possible breach of the Code;
arrangements for periodic review of suspension with or without pay, pending determination of whether there has been a breach of the Code;
date of effect of sanctions;
the keeping of records; and
the delegations and any standard documents needed to support the procedures.

Where an employee changes employment status or moves to a different agency

23 The Commissioner's Directions are expected to provide that, where an employee who is suspected of having breached the Code of Conduct changes the basis of his or her employment or moves to another agency before action is commenced to determine whether a breach has occurred, the procedures to be used will be those applicable to the employee's status and Agency at the time action is commenced. Where there is a change of agency, it would be advisable for the two agencies to work together on the handling of the case. It is the employee's current agency, however, which must take carriage of the matter.

Performance and Conduct Network

24 It is intended to hold a meeting of the Performance and Conduct Network early in the new year to share information on issues relating to and arising from the implementation of the new misconduct arrangements.

Related Advice

25 This advice should be read in conjunction with related advices:

Number 4, The APS Values and the Code of Conduct;
Number 19, Public Interest Whistleblowing;
Number 21, Workplace Harassment; and
Number 23, Transitional Provisions for Dealing with "Pre-commencement Misconduct".

The PSMPC contact in the first instance is the PSMPC helpline on 02 6202 3859 and email psact@apsc.gov.au.

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

30 November 1999

Attachment A: Procedures for Determining Breaches of Code of Conduct

I, [name of Agency Head], [position and name of Agency], establish these Procedures under subsection 15 (3) of the Public Service Act 1999.

Dated 1999.

1 Application of Procedures

These Procedures must be complied with in determining whether an APS employee has breached the Code of Conduct.

Note These Procedures apply only in relation to a suspected breach of the Code of Conduct by an APS employee in respect of which a determination is to be made. Not all suspected breaches of the Code of Conduct may need to be dealt with by way of a determination. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate.

2 Selection of decision-maker

Subject to the Agency Head having made a selection, the person who determines whether an APS employee has breached the Code of Conduct is to be selected by [name or title of person].

3 Formal hearing not required

For the purpose of determining whether an APS employee in an Agency has breached the Code of Conduct, a formal hearing is not required.

4 Information to be given to employee before determination is made

Before a determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, the employee must:
1. be informed of:
  1. the details of the suspected breach of the Code of Conduct (including any variation of those details); and
  2. the sanctions that may be imposed on the employee under subsection 15 (1) of the Act (including any limitations on that power contained in regulations made for the purposes of subsection 15 (2) of the Act); and
2. be given reasonable opportunity to make a statement, in writing, in relation to the suspected breach within 7 days or any longer period as is allowed.
If the employee makes a written statement within 7 days (or, if allowed, any longer period) of being given the opportunity to do so, the employee must also be given the opportunity to make an oral statement in relation to the suspected breach.
An employee who does not make a written statement in relation to the suspected breach is not, only for that reason, to be taken to have admitted committing the suspected breach.

5 Determination process to be informal

The process for determining whether an APS employee has breached the Code of Conduct must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

6 Person making determination to be independent and unbiased

An Agency Head must take reasonable steps to ensure that the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased.
In particular, a person must not determine whether the employee has breached the Code of Conduct if the person has previously made a report in relation to any of the matters suspected of constituting a breach by the employee of the Code of Conduct.

7 Action that may be taken if breach found to have occurred

1.If a determination is made that an APS employee has breached the Code of Conduct, the employee may be counselled or a sanction may be imposed on the employee under section 15 of the Public Service Act 1999.
2.If a sanction is imposed on the employee, the employee must be given a written statement setting out the reasons for the determination and the imposition of the sanction.

8 Record of determination

After a determination in relation to a suspected breach of the Code of Conduct by an APS employee is made, a written record stating whether the employee has been found to have breached the Code of Conduct must be prepared.

Note The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.

9 Appropriate procedures if basis of APS employee's engagement in an Agency changes or employee moves to a different Agency

This clause applies if:
1. an APS employee in an Agency is suspected of having breached the Code of Conduct; and
2. before any determination is made in relation to the suspected breach:
  1. the basis of the employee's engagement in the Agency changes; or
  2. the employee moves to a different Agency.
Note Examples of a change in the basis of an APS employee's engagement in an Agency are as follows:
1. a change from engagement for a specified term, or for the duration of a specified task, to engagement as an ongoing APS employee;
2. a change from engagement for duties that are irregular or intermittent to engagement as an ongoing APS employee.
A determination (if any) in relation to the suspected breach must be made:
1. if the basis of the employee's engagement in the Agency has changed - in accordance with the procedures applicable to the basis of the employee's engagement in the Agency at the time the process for determining whether the employee has breached the Code of Conduct is commenced; and
2. if the employee has moved to a different Agency - in accordance with the procedures applicable in the Agency to which the employee has moved at the time the process for determining whether the employee has breached the Code of Conduct is commenced.

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