5. Considering a report of suspected misconduct
Last updated: 09 Jun 2015
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5.1 Relationship between misconduct and performance management processes
5.1.1 Employee behaviour considered inconsistent with the Australian Public Service (APS) Code of Conduct (the Code) can vary from serious matters, for example, large scale fraud, theft, misusing clients' personal information, sexual harassment and leaking classified information to relatively minor matters, such as a single, uncharacteristic angry outburst.
5.1.2 Not all suspected misconduct needs to be dealt with under an agency's s15(3) procedures. Other approaches such as performance management, counselling, or alternative dispute resolution, such as mediation, may be the most effective way to address behaviour that is minor misconduct.
5.1.3 When considering concerns about an employee's behaviour that relate both to the employee's effective performance and to suspected breaches of the Code, clause 4.2 of the Australian Public Service Commissioner's Directions 2013 (the Directions) requires agency heads to have regard to any relevant standards and guidance issued by the Australian Public Service Commissioner (the Commissioner) before initiating an investigation under the agency's s15(3) procedures.
5.1.4 The material at paragraphs 5.1.5 to 5.1.9 below provides the standards and guidance referred to in clause 4.2 of the Directions.
5.1.5 The purpose of the Code is to set out the minimum behavioural standards required of APS employees. Taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the agency and the APS and thereby maintaining public confidence in public administration. Rather than seeking to punish the employee, an aim of misconduct action is to maintain proper standards of conduct by APS employees and protect the reputation of the APS.
5.1.6 Performance management arrangements also provide an appropriate mechanism for dealing with some forms of unacceptable workplace behaviour. Good management practice would be to consider whether the suspected misconduct could be better dealt with under the agency's performance management framework before deciding whether to start a misconduct investigation.
5.1.7 Misconduct action is not a substitute for managing challenging behaviours that are more appropriately managed as unsatisfactory performance. Taking misconduct action for relatively minor matters can have the effect of undermining the integrity of the conduct framework.
5.1.8. The decision about which approach to use needs to be considered carefully on the facts of each case having regard to the following:
- How serious is the suspected behaviour? What is the potential impact on public confidence in the integrity of the agency and the APS?
As a general rule, the more serious the alleged behaviour or the greater the potential impact on public confidence in the integrity of the agency and the APS, the more appropriate it is to use misconduct processes.
- How likely is it that the employee would respond constructively to action under an agency's performance management framework?
Where an employee has shown, through their behaviour, that they are unlikely to respond constructively to action under the performance management framework, misconduct action may be the most effective way of dealing with the matter.
- To what extent is the suspected behaviour within the control of the employee?
Unacceptable behaviour by an employee that is within their control, for example wilful refusal to follow lawful and reasonable directions, or a blatant disregard for expected behavioural standards could generally be dealt with as a potential breach of the Code. Behaviour that is either accidental or is a result of a lack of capability on the employee's part is often better dealt with through other processes.
5.1.9 In all cases it is important that an apparent breach of the Code be addressed in some way and a record made of any action taken and the reasons for it. Minor unacceptable behaviour, if unaddressed, may be repeated or may escalate to more serious behaviour.
5.1.10 At Appendix 7 is a checklist on Initial consideration of suspected misconductto assist agencies.
5.2 Suspected misconduct and underlying medical conditions
5.2.1 All employees are required to comply with the Code regardless of mental or physical incapacity. The ability to comply with the Code is an inherent requirement for employment in the APS.
5.2.2 In some cases unacceptable behaviour may appear to be the result of an underlying medical condition. In such cases, agencies are advised to consider seeking medical opinion to establish whether there is a causal link between the behaviour and the employee's health.22
5.2.3 While mental illness or physical incapacity does not usually determine whether or not behaviour would be investigated as suspected misconduct, it may be a mitigating factor in deciding the severity of any sanction imposed for a breach of the Code.
5.3 Suspected misconduct of former APS employees
5.3.1 In July 2013 the Public Service Act 1999 (PS Act) was amended to make specific provision for agencies to continue, or initiate, inquiries into suspected misconduct by former APS employees.23 It is only possible to initiate misconduct action against a former employee who left the APS on or after 1 July 2013.24
5.3.2 In deciding whether to start an investigation once an employee has left the APS, or to continue an investigation once an employee resigns, the following matters could be considered.
- Whether it would be possible to give the former employee a fair hearing, including a reasonable opportunity to answer the case against them.
- Factors to consider include the passage of time since the incident(s) and any constraints on the former employee accessing records in order to be able to respond effectively to the allegations.
- Agencies may need to consider whether to provide a former employee with supervised access to agency premises or resources in order to identify relevant records.
- The risks of not undertaking an investigation, such as damage to the reputation of the agency or APS, or the message not pursuing the matter would send to other employees or the community about the seriousness with which the agency responds to integrity concerns
- The costs associated with any investigation
- The availability of, and ability to collect, evidence.
5.3.3 A former employee is not obliged to cooperate with an investigation and an agency head has no power to direct the former employee to provide information or attend interviews. Where attempts to contact a former employee by telephone, email or by registered mail have failed, an agency may be satisfied that reasonable attempts have been made to inform the former employee of the allegations and continue the investigation.
5.3.4 A former employee may be motivated to cooperate in an investigation because of the impact an adverse outcome could have on their reputation or employability.
5.3.5 Former employees found to have breached the Code have the right to seek review by the Merit Protection Commissioner of that determination. 25
5.3.6 While a breach decision-maker may make a determination that a former employee has breached the Code, the agency head has no power to impose a sanction on the former employee.
5.3.7 Some employees subject to allegations of a breach of the Code separate from the APS before their agency has completed a Code investigation. If the agency does not proceed to determine whether a breach of the Code has occurred, it is open to those employees to claim subsequently, if asked by a new employer, that they have not been the subject of a determination. They cannot claim, however, not to have been the subject of allegations that they had breached the Code and an investigation. While minor breaches of the Code may not be of consequence for future employment, serious misconduct may be a matter for consideration in pre-employment checks by the new employer. For further information on privacy matters and the information one APS agency may disclose to another agency see Part II, Sections 2.3 and Part III, Section 8 of this guide.
5.4 Public Interest Disclosures and misconduct investigations
5.4.1 Suspected misconduct could be identified through a disclosure made in accordance with the Public Interest Disclosure Act 2013 (PID Act) either directly to an authorised officer or through a supervisor or manager. Further advice on the PID Act can be found at www.ombudsman.gov.au/pages/pid/. Appendix 3 Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act provides some advice on the management of disclosures that may also be a suspected breach of the Code.
5.4.2 Each agency must treat disclosures made under the PID Act in accordance with the provisions of that Act.
5.5 Consistency of approach to handling suspected misconduct
5.5.1 Consistent messages about the agency's views on various types of misconduct assists employees to understand the behaviour that is expected of them. APS agencies will take different approaches to some types of misconduct because of the different risks posed by each agency's operating environment. However, differential treatment of employees for similar misconduct within an agency has been considered to indicate unfairness in the context of unfair dismissal claims in the Fair Work Commission. The Merit Protection Commissioner may also take this into consideration when reviewing agency decisions on sanction.
5.5.2 Inconsistent approaches may arise within an agency if managers are unaware of the agency's views on the seriousness of certain types of misconduct. One of the most effective ways of helping managers to make consistent and appropriate decisions is to provide guidance, illustrated with practical examples, about the factors to take into account when deciding whether to deal with the suspected misconduct through the agency's s15(3) procedures or through alternative methods.
5.5.3 Inconsistencies may also arise where there is devolved decision-making and a large number of people holding authorisations and delegations. Consistency in decision is likely to be assisted by ensuring that managers with the appropriate level of seniority are authorised to make decisions about certain types of misconduct.
5.6 Misconduct action—preliminary investigations
5.6.1 A preliminary investigation may indicate that, although there may be some substance to an allegation, it is not a matter best dealt with under an agency's s15(3) procedures. This could occur if the alleged behaviour is better addressed through the performance management framework.
5.6.2 Preliminary investigations may also indicate there would be little utility in proceeding to a s15(3) investigation. This can occur for a range of reasons including insufficient evidence to be able to reach a concluded view that misconduct had occurred.
5.6.3 The timing of an investigation is another factor to consider. For example where a matter is also under investigation as a possible criminal offence, moving to a s15(3) investigation too early can alert the person suspected of misconduct, prejudicing the capacity of the criminal investigation to gather evidence. To minimise the prospect of the destruction or removal of evidence, some agencies complete information gathering, as far as reasonably practicable, before the person suspected of misconduct is advised that they may be under any suspicion. For further information see Part I, Section 3.7 Suspected misconduct that may also be a criminal act.
5.6.4 While as a matter of good practice, agencies should aim to keep the preliminary investigative phase short, this is not always possible. Some agencies prefer to gather a large amount of evidence before invoking their s15(3) procedures. In these cases, the agency may advise the person suspected of misconduct during the preliminary phase that a matter concerning their conduct has arisen, and is being examined, and that they will be given an opportunity to respond at a later date.
5.6.5 Generally, agencies prefer to advise an employee suspected of misconduct earlier, rather than later, to avoid the undesirable situation of the employee discovering unofficially that an investigation is underway.
5.6.6 In serious cases where any delay in acting on suspected misconduct raises a real risk to the safety of employees or clients, or that evidence may be destroyed, it is advisable to start an investigation, in accordance with the agency's s15(3) procedures, as quickly as possible. Prompt consideration may need to be given to suspending the employee from duty or assigning them to other duties—see Part II, Section 5.8 Deciding whether to reassign duties or suspend the employee of this guide.
5.7 Alternatives for addressing behavioural concerns
5.7.1 Options available to agencies if it is decided to address allegations about behaviour through means other than misconduct action include:
- through the performance management framework, for example, by clarifying performance expectations regarding behaviour in performance plans
- by providing training or coaching for the employee
- by monitoring and guiding the employee about appropriate behaviour, for example, as part of performance management discussions
- by counselling, particularly where the concern relates to a single incident
- by assigning new duties. Care needs to be taken to ensure that this is not perceived as a de facto sanction imposed without a proper process
- by determining if there are health issues that may be impacting on the employee's performance and putting in place appropriate management actions as a consequence26
- by using alternative dispute resolution such as mediation, conciliation or group conferencing to assist in resolving interpersonal disputes.27
Records of employee discussions
5.7.2 Where an alternative to misconduct action is taken a record should be made of key discussions and outcomes. This is particularly important where an employee is counselled that particular conduct is unacceptable and remedial action undertaken. It is good practice to share that record with the employee and to record any comments made by the employee. These records, and records of any follow-up discussions or counselling, should be filed in accordance with agency policy.
5.7.3 Employees should also be informed that records of counselling may be relied on in handling future allegations of misconduct. It may be appropriate to inform the employee of the agency's policy relating to the retention and destruction of such records. See also Part III, Section 8 Recordkeeping and access to records of this guide.
Where conduct does not improve or deteriorates
5.7.4 Alternative measures may not satisfactorily resolve concerns about an employee's conduct and the employee may repeat behaviours of concern. It may be necessary to take misconduct action under the agency's s15(3) procedures on the basis that a pattern of suspected misconduct may be developing. This may be the case even though the initial incident was relatively minor.
5.8 Deciding whether to reassign duties or suspend the employee
5.8.1 Action to reassign duties temporarily, or to suspend from duty, may be made at the same time as the decision to start action under an agency's s15(3) procedures, or at any stage during the process of determining whether a breach of the Code has occurred. It may be necessary to reassign an employee's duties or to suspend the employee during the misconduct investigation as a result of a further development e.g. concerns of other staff, repetition of the behaviour, or new allegations come to light during the investigation.
5.8.2 In exercising these powers, the decision-maker should not prejudge, or be seen to prejudge, the outcome of the misconduct action. Although an employee may be reassigned duties before a determination that a breach of the Code is made, it will be for operational reasons and is not to be used as a punitive measure or a sanction. At this stage re-assignment of duties and suspension are precautionary measures aimed at protecting the interests of the agency and its reputation, the public interest and/or the interests of other employees, including the complainant or witnesses. In some cases, these decisions will also be made in the interests of the employee under investigation.
5.8.3 Agencies should be clear about who has the authority to take decisions regarding the re -assignment of duties or suspension from duty. It is preferable for this person not to have been involved in investigating the alleged breach of the Code or making a related determination. The person making the suspension or re-assignment decision must be given delegated authority to do so under the PS Act and Public Service Regulations 1999 (PS Regulations). A checklist designed to assist suspension decision-makers is at Appendix 8 of this guide.
Re-assignment of duties
5.8.4 The agency may decide that it is more appropriate to assign new duties to the employee for a temporary period as an alternative to suspension.28 The power to do so is the general assignment of duties power in s25 of the PS Act.
5.8.5 The factors to take into account are similar to those applying to the decision to suspend the employee—that is, the public interest and the agency's interests. The maintenance of a cohesive and effective workplace is a relevant consideration in relation to the re-assignment of duties. It may also be appropriate to have regard to the circumstances of the employee under investigation and in some cases the circumstances of their family e.g. would relocation to another region be appropriate.
5.8.6 In order to ensure that all relevant facts are considered before making a decision on re-assignment of duties, it is appropriate to notify the employee of the proposal and seek their views. Sometimes urgent action may be required that will not allow for that opportunity. In this case it would be appropriate to invite the employee to comment on the re-assignment after the decision has been made. Depending on the employee's response, the agency has the flexibility to consider alternative arrangements, including suspension from duty.
5.8.7 Employees who are assigned to different duties are not entitled to seek review of the re-assignment decision under s33 of the PS Act, unless the re-assignment involves relocation to another place or being assigned duties that the employee cannot reasonably be expected to perform.29
Legislative framework for suspension
5.8.8 Section 28 of the PS Act, and regulation 3.10 of the PS Regulations, set out the legislative basis for suspending an employee who is suspected of having breached the Code. In brief, the provisions are as follows.
- An employee may be suspended, with or without remuneration, where the agency head believes, on reasonable grounds, that the employee has, or may have, breached the Code and where the suspension is in the public interest, or the agency's interest (regulation 3.10(1), (2), and (3)).
- If the suspension is to be without remuneration, the period without remuneration is to be:
- not more than 30 days; or
- if exceptional circumstances apply—a longer period (regulation 3.10(3)).
- A suspension, with or without pay, must be reviewed at reasonable intervals (regulation 3.10(4)).
- A review of suspension under regulation 3.10 is not a review of the original suspension decision. It is a fresh decision as to whether the employee should be suspended.
- Suspension must end immediately if the agency head no longer believes, on reasonable grounds, that
- the employee has, or may have, breached the Code, or
- that it is in the public interest, or the agency's interest, to continue the suspension (regulation 3.10(5)).
- Suspension must end as soon as any sanction is imposed for the relevant breach of the Code (regulation 3.10(6)).
- In exercising suspension powers, the agency head must have due regard to procedural fairness unless, on reasonable grounds, they believe that it would not be appropriate to do so in the particular circumstances (regulation 3.10(7)).
5.8.9 The requirements in the regulations concerning review and revocation of suspension decisions mean that the suspension decision-maker must be informed of progress with the misconduct investigation. They need this information to ensure that they can properly review, at reasonable intervals, the decision to suspend the employee, or to revoke the suspension in the circumstances provided for in regulation 3.10(5) and 3.10(6).
When is it appropriate to suspend an APS employee?
5.8.10 The starting point for considering whether to suspend an employee suspected of breaching the Code is the public interest or the agency's interest. It may be in the public, and agency's interest, to suspend an employee from duty where their continued presence in the workplace poses risks to, for example:
- the safety and well-being of members of the public, including agency clients
- the integrity of data about members of the public held by the agency
- the public revenue
- public confidence in the agency or the APS as a whole.
5.8.11 In addition, it may be necessary to suspend an employee from duty where:
- there is a significant risk that an investigation of the allegation may be compromised by the employee's presence in the workplace
- the alleged misconduct is serious and there is a real risk that the conduct may be repeated
- the allegations may have impaired the public's confidence in the agency's capacity to perform its functions
- there is a risk to the safety of other employees
- it would be inappropriate for the employee to continue to perform their usual duties until the allegations are resolved, and assignment of other duties is not appropriate or cannot be accommodated.
Procedural fairness in relation to suspension
5.8.12 As set out above, regulation 3.10(7) requires a decision-maker when making a decision to suspend an employee, to have due regard to procedural fairness unless, on reasonable grounds, the decision-maker believes that it would not be appropriate to do so in the particular circumstances. Cases where the decision-maker decides not to have regard to procedural fairness are likely to be unusual. It may be appropriate where there is a need to act urgently due to safety concerns, or a risk that evidence will be destroyed, or where there is some other overriding public interest.
5.8.13 In most cases, however, decision-makers will be able to have due regard to procedural fairness. The usual practice is to:
- inform the employee suspected of misconduct, in writing, of the agency's preliminary intention to suspend and the reasons for this proposal, and
- give the employee a reasonable opportunity to respond before any decision to suspend is taken.
5.8.14 An employee who is suspended without first being given an opportunity to comment should be advised of the reasons for the suspension decision, and for proceeding without seeking the employee's comments, and invited to comment.
5.8.15 Upon receipt of the employee's comments, a review of the decision to suspend can promptly occur.
5.8.16 Advice to an employee about a suspension decision needs to be clear that the decision is not a prejudgement of whether the employee has breached the Code.
Suspension with or without remuneration
5.8.17 The suspension decision-maker is required to decide whether suspension from duties is with or without remuneration.
5.8.18 The term remuneration is not defined by the PS Act or PS Regulations but, in accordance with its ordinary meaning, includes:
- annual salary, excluding performance-based allowances, that would have been paid to the employee for the period they would otherwise have been on duty, including any approved higher duties allowances
- other salary-related payments, including those associated with the performance of extra duties, such as overtime but excluding overtime meal allowance, and shift penalty payments where there is a longstanding and regular pattern of extra duty or shift work being performed which would have been expected to continue but for the suspension from duty
- any other allowances of a regular or ongoing nature e.g. including cost reimbursement allowances such as a temporary accommodation allowance.
5.8.19 Factors to consider in making the suspension decision may include:
- the seriousness of the suspected misconduct—suspension without remuneration would usually be appropriate in cases where the sanction imposed might be termination of employment if the suspected misconduct is determined to be a breach of the Code
- obligations under s15 of the Public Governance, Performance and Accountability Act 2013with respect to the proper use and management of public resources. In the circumstances of the case, is it appropriate for the suspended employee to be remunerated if they are not working?
- whether suspension without remuneration would give the employee an added incentive to cooperate with the investigation
- the estimated duration of the misconduct action
- the likely financial hardship, if any, for the employee.
5.8.20 Under both the common law and the Administrative Decisions (Judicial Review) Act 1977, a decision-maker is required to take into account all relevant considerations and should not rely on irrelevant considerations in reaching a decision. A claim of financial hardship in the context of a 'suspension without remuneration' decision is a relevant consideration and needs to be considered by the decision-maker. The decision-maker can balance the severity of the suspected breach against the severity of the financial impact of the suspension. In some circumstances the hardship imposed may be disproportionate to the suspected breach. On the other hand, a suspected breach may be so serious that it outweighs claims of hardship.
5.8.21 The onus is on the employee to substantiate a claim of hardship, by providing persuasive evidence in support of their case. A decision-maker might not attach much weight to an assertion of hardship. However, a decision-maker may request further information about the nature of the hardship. For example, where an employee claims that their bank would take possession of their house, the decision-maker might seek a statement to this effect from the bank and/or a signed statutory declaration from the employee. The decision-maker might then attach greater weight to that consideration in reaching the decision.
5.8.22 A period of suspension without remuneration longer than 30 days is permitted only where there are exceptional circumstances. Exceptional circumstances are not defined in the legislation,30 but could include:
- where a strong prima facie case of serious misconduct is apparent
- in order to minimise any delay between a determination of breach and imposing a sanction, where a finding has been made of a serious breach of the Code
- where an employee has been charged with a criminal offence and is waiting to have the charge heard and determined
- where an employee has appealed against a criminal conviction and is waiting to have the appeal heard.
5.8.23 An employee who is not receiving remuneration may be able to access paid leave credits during suspension. This is at the discretion of the agency and dependent on the provisions of the relevant industrial instrument setting out terms and conditions of employment, and agency policies. Some agencies allow suspended employees to access accrued recreation or long service leave credits, but not personal leave. The rationale for drawing this distinction is that personal leave is generally available where an employee is prevented by illness or caring responsibilities from attending for duty. Providing personal leave for a period of suspension is usually inconsistent with the purpose of the leave.
5.8.24 An employee who is suspended may wish to seek outside employment while the suspension is in place. An agency's policies and procedures on outside employment would continue to apply, including whether any outside employment might create a possible conflict of interest with the employee's public service employment. A suspension with or without remuneration does not affect the employee's obligation to comply with agency policies, lawful and reasonable directions, or with the Code, more generally.
5.8.25 An agency may consider whether an employee who was suspended from duty and subsequently found not to have breached the Code, is able to seek compensation for any salary foregone, or leave credits taken, during the period of suspension. There is no express provision in the PS Act or Regulations allowing for salary to be paid in the event that an employee is found not to have breached the Code. However, section 73 of the PS Act provides a mechanism for the approval of payments to employees in 'special circumstances', and may provide the authority for any compensatory payment. Further information on the operation of section 73 is on the Commission's website.31
Recognition of service during suspension
5.8.26 Whether the period of suspension from duty of an employee counts as 'service' for purposes such as annual leave or long service leave, is dependent on the terms of legislation and any industrial instrument or contract that confers the entitlement to leave. This is the case whether the employee is suspended with or without remuneration. For example:
- Generally, it is considered that suspension from duty does not constitute a break in an employee's continuous employment as defined in s11(1) of the Long Service Leave (Commonwealth Employees) Act 1976. Periods of suspension, with or without pay, would therefore not affect an employee's long service leave entitlements.
- Whether a period of suspension counts as service for annual leave purposes is dependent on the employee's conditions of employment as provided for in an industrial agreement or supporting policies. If the conditions of employment do not exclude the accrual of annual leave during periods of suspension, the period of suspension, with or without remuneration, will generally count as service for annual leave accrual purposes.
5.8.27 It is advisable for agencies to inform the employee on suspension about the agency's policies on access to the workplace, entitlement to apply for jobs in the agency and other agencies, and attendance at training courses previously booked or approved.
Right of Review
5.8.28 Agency guidance to employees needs to be clear on the distinction between the right to have suspension from duty reviewed at regular intervals (regulation 3.10(4)) and the review of actions provisions in s33 of the PS Act. Review of suspension under regulation 3.10(4) has prospective effect. It examines whether an employee's suspension from duty is to continue from the time of the review decision. It does not involve a reconsideration of the original decision to suspend the employee.
5.8.29 A review of action under s33 of the PS Act, by contrast, involves re-examination of the original decision. It is good practice to advise the employee of their right to seek a review, under s33 of the PS Act, of the decision to suspend. See also Part III, Section 9, Review of Actions and other review optionsof this guide.
5.9 Key points for agency guidance material
5.9.1 Agency guidance material could include information drawn from this section about:
- the considerations relevant to a decision to deal with suspected misconduct under the agency's s15(3) procedures or through other action and who is responsible for making this decision
- the types of suspected misconduct that the agency considers would usually be handled under the agency's s15(3) procedures
- suspected misconduct and underlying medical conditions
- suspected misconduct and former employees
- disclosures of suspected misconduct made under the PID Act (see Appendix 3 Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act)
- the recordkeeping requirements for employee discussions/counselling sessions and what to do if the employee's conduct does not improve or deteriorates further
- procedures for managing suspension and assignment of duties, including
- circumstances in which an employee may be suspended, with or without remuneration, or assigned other duties under s25 of the PS Act
- responsibilities for decision-making
- review arrangements.
22 Also see the APSC publication Working Together: Promoting mental health and wellbeing at work at www.apsc.gov.au/publications-and-media/current-publications/mental-health.
23 This provision does not apply to APS employees who left that agency to go to another APS agency on transfer or promotion.
24 In accordance with the transitional provisions in the Public Service Amendment Act 2013,Schedule 4, Part 6, Item 20
25 Review rights and procedures for former employees in this regard are set out in Division 7.3 of the Public Service Regulations.
26 For further information see the APSC publications Working Together: Promoting mental health and wellbeing at work at www.apsc.gov.au/publications-and-media/current-publications/mental-health and Information about disability for managers and human resources professionals at www.apsc.gov.au/aps-employment-policy-and-advice/disability/info-for-managers
27 See Department of the Attorney-General's Your Guide to Dispute Resolution www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx
28 Agencies may wish to refer to Department of Employment and Workplace Relations v Oakley, PR954267 and PR954267. This AIRC decision is significant in that the Full Bench held that it was appropriate and reasonable to delay taking Code action so as not to prejudice criminal proceedings about the same matter, and that the decision to place the employee on alternative, restricted duties was appropriate and, in that case, preferable to suspension from duty. The AIRC held that in that case it did not mean that a sanction of termination of employment was unfair.
30 Considering the phrase in the context of a different Act, the Full Federal Court said that 'exceptional circumstances' means 'unusual or out of the ordinary': Oreb v Willcock  FCAFC 197.