1. Introduction

Last updated: 09 Jun 2015

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1.1 Purpose

1.1.1 This guide, Handling Misconduct, is aimed at assisting Australian Public Service (APS) agencies to develop a timely and effective approach to managing suspected and proven misconduct.

1.1.2 Agencies are encouraged to use the information in this guide to develop their guidance material. The better practice advice, sample procedures and checklists are not intended to be prescriptive and can be used to inform agency guidance material and procedures.

1.2 Structure

1.2.1 Handling Misconduct comprises three parts and appendices:

  1. Part I, Sections 1–3 outlines the legislative framework, the context and key concepts applying to reporting and dealing with suspected misconduct i.e. suspected breaches of the APS Code of Conduct (the Code).
  2. Part II, Sections 4–7 contains good practice advice on reporting and managing suspected misconduct, from the time an allegation is received to the imposition of sanctions. Part II is the core of this guide and steps through the key stages of the process.
  3. Part III, Sections 8-10 contains good practice advice on associated processes, such as record-keeping, review of decisions and quality assurance mechanisms.

1.2.2 The appendices to Handling Misconduct provide further information including:

  1. information on the application of the Code to statutory office holders
  2. an example of agency procedures under s15(3) of the Public Service Act 1999 (PS Act)
  3. information on the interaction between the Code and the Public Interest Disclosure Act 2013
  4. information on the relationship between the Code and the duties of officials in the Public Governance, Performance and Accountability Act 2013
  5. information on each element of the Code
  6. tips and traps when selecting an external investigator
  7. a checklist for consideration of incidents or reports of suspected misconduct when first identified
  8. a checklist for decision-makers when considering suspending employees
  9. a checklist for decision-makers making determinations of a breach of the Code
  10. a checklist for decision-makers imposing a sanction.

1.3 Terminology

1.3.1 Terms used in this guide have the same meanings as set out in s7 of the PS Act and subordinate legislation. Where the legislation does not define terms used in this guide, they have the following meanings:

  • 'assignment of duties' means the action of the agency head, under s25 of the PS Act, in determining the duties of an employee and the place or places where the duties are to be performed. A related action is the 're-assignment of duties' which is one of the sanctions available under s15 of the PS Act
  • 'breach decision-maker' means the person selected under the agency's s15(3) procedures to determine whether or not a breach of the Code has occurred
  • 'determination' means a decision made by the breach decision-maker under the agency s15(3) procedures about whether an APS employee was found to have breached the Code
  • 'employee' means a person employed under the PS Act. It may include former employees who are or have been the subject of an investigation under an agency's s15(3) procedures in relation to action(s) while they were employed under the PS Act
  • 'misconduct' means conduct by a person while an APS employee that is determined under s15(3) procedures to be in breach of the Code. Before such a determination is made, the conduct is referred to as 'suspected' or 'alleged' misconduct
  • 'misconduct action' or 'misconduct process' refers to those processes and decisions, in relation to an individual, that an agency carries out in accordance with its s15(3) procedures
  • 'movement' means a voluntary move of an ongoing employee between agencies under s26 of the PS Act
  • 'must' is used where an action is a requirement in the PS Act, Public Service Regulations 1999(PS Regulations), Australian Public Service Commissioner's Directions 2013 or other law
  • 'public interest disclosure' or 'PID' has the same meaning as in the Public Interest Disclosure Act 2013
  • 's15(3) procedures' means the procedures established by the agency head in accordance with s15(3) of the PS Act for determining whether an APS employee, or former employee, in the agency has breached the Code and the sanctions, if any, that are to be imposed where a breach of the Code has been determined
  • 'sanction' means one of the actions set out in s15(1) of the PS Act
  • 'sanction decision-maker' means the person who is the delegate of the agency head under s15(1) of the PS Act for the purpose of deciding sanction
  • 'should' indicates good practice
  • 'suspension' means the action of standing an employee down from their duties for a suspected breach of the Code, as set out in s28 of the PS Act and regulation 3.10 of the PS Regulations
  • 'suspension decision-maker' means the person who is the delegate of the agency head under regulation 3.10 of the PS Regulations for the purpose of deciding whether an employee should be suspended from duty.

1.4 Further information

1.4.1 Further information on the APS Values, Employment Principles and the Code is available from the Australian Public Service Commission's (the Commission) website at www.apsc.gov.au and from the Ethics Advisory Service on 02 6202 3737 and ethics@apsc.gov.au.

1.4.2 This guide complements other Commission publications and advice relating to the behaviour expected of APS employees, particularly APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads.1

1.4.3 Other useful sources of information on issues relating to misconduct include:

  • material on privacy on the website of the Office of the Australian Information Commissioner
  • legal briefings from law firms
  • published decisions of courts and the Fair Work Commission
  • the Merit Protection Commissioner's case summaries published on the APS Commission website.2

1.5 Legal advice on the Public Service Act

1.5.1 Agencies are asked to contact the Legal Services Unit in the Commission at legal@apsc.gov.au when obtaining legal advice on the PS Act. Agencies are to forward copies of legal advice they obtain to the Commission, consistent with clause 10 of the Legal Services Directions 2005.

1.6 Disclaimer

1.6.1 The Commission has used its best endeavours to ensure the accuracy of the material at the time of writing, and will update the document from time to time. Agencies will be notified of any significant changes to the misconduct framework through the Commission's website as they arise.

1.6.2 However, the Commission is unable to guarantee that this guide is complete, correct and up-to-date, or that it is relevant to the particular circumstances of any matter. Agencies may wish to consider obtaining legal advice before making a decision if they are uncertain of their obligations.


Footnotes

1 See www.apsc.gov.au/publications-and-media/current-publications/aps-values-and-code-of-conduct-in-practice (under review)

2 See www.apsc.gov.au/aps-employment-policy-and-advice/merit/case-summaries