7. The determination and sanction

Last updated: 09 Jun 2015

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7.1 Deciding on decision-makers

7.1.1 Subject to the agency's s15(3) procedures, the investigator, breach decision-maker and sanction decision-maker may be the same or different persons.

7.1.2 An agency's s15(3) procedures may require a separation of the roles of breach and sanction decision-maker. Even if they do not, it is recommended that these roles are undertaken by different people. This assists in minimising the risk of procedural flaws, including apprehension of bias and having regard to irrelevant considerations in making the decision.

7.2 Role of the breach decision-maker

7.2.1 The role of the breach decision-maker is to determine whether or not the person suspected of misconduct has breached the Australian Public Service (APS) Code of Conduct (the Code) in accordance with the agency's s15(3) procedures. Appendix 9 Making a decision about a breach of the Australian Public Service Code of Conduct checklistprovides further guidance.

Responsibility for the decision

7.2.2 When a different person has undertaken the investigation, the breach decision-maker remains responsible for the decision. The decision-maker needs, separately and independently, to consider the evidence where an investigator has made a recommendation about whether a breach of the Code has occurred. The decision-maker reaches their own conclusions on the findings of fact and about breach.

7.2.3 Where a breach decision-maker has concerns about the recommendations made by an investigator, or about the investigatory process, a decision-maker may act on those concerns and take additional steps to correct procedural flaws or to satisfy themselves on particular matters. This might include writing to the person under investigation and giving them an opportunity to comment on the decision-maker's preliminary view about findings of fact and breaches of the Code before a decision is made.

Determining breach

7.2.4 The process of determining a breach of the Code requires the decision-maker to decide, after weighing the evidence, whether or not the person under investigation has done what they were alleged to have done, and then to decide, as a consequence, whether or not the person has breached particular elements of the Code.

7.2.5 In determining which elements of the Code have been breached it is important to focus on the element(s) most relevant to the behaviour. A targeted approach is consistent with the concept that misconduct action in the APS has a corrective function. It is easier to explain to a person found to have breached the Code that their conduct was wrong, or inappropriate, if the elements of the Code are obviously relevant to the misconduct. Even if the case can be made for a number of elements, adding extra elements can be unnecessary, add complexity to decisions and provide confusing messages about the seriousness with which the behaviour is viewed.

7.2.6 There is no necessary link between the number of elements of the Code that an employee has breached and the severity of the sanction.

7.2.7 Where more than one element of the Code has been breached, each element will need to be considered separately in the final decision. See Appendix 5 Elements of the Australian Public Service Code of Conduct for further information about the meaning of each element of the Code.

7.2.8 A further factor to consider in making a decision on whether particular conduct represents a breach of the Code is the existence of extenuating circumstances. For example a decision-maker may conclude that the person under investigation has done what was alleged but has made an honest mistake rather than breached the Code. The extenuating circumstances leading to that mistake might include systemic issues such as a lack of adequate training, or problems with technology, leading to a number of similar mistakes by colleagues. It is important not to confuse extenuating circumstances and mitigating circumstances. The latter are relevant to sanction and are discussed in Part II, Section 7.3 Factors to be considered in determining the sanction of this guide.

Evidence does not support a finding of misconduct

7.2.9 It may become clear to the breach decision-maker in the course of the investigation that no breach has occurred or that there is insufficient evidence to base a finding that a breach has occurred. If this happens the decision-maker can either terminate the decision-making process or alternatively finalise the decision-making-process with a determination that the employee has not breached the Code. The person under investigation should be advised of the outcome.

Standard of proof

7.2.10 The standard of proof applicable to findings that the Code has been breached, including the findings of fact that support the breach determination, is the civil standard. That is, findings are based on the conclusion that it is more likely than not that the person suspected of misconduct has done what they were alleged to have done. This is referred to as 'the balance of probability'.

7.2.11 Before reaching a finding the decision-maker needs to have regard to the seriousness of what is alleged and the consequences which might flow to the person suspected of misconduct if the allegations are proven. The level of satisfaction required on the civil standard of proof increases in accordance with the seriousness of the matter under consideration. In Briginshaw v Briginshaw (1938) 60 CLR 336 the High Court of Australia indicated the need to act with proper care before finding that a serious allegation is established.

Preparing a decision record

7.2.12 A written record must be made of a determination of a breach of the Code, including details of the breach. If the person found to have breached was provided with a statement of reasons, the record must include that statement of reasons. See clause 6.7 of the Australian Public Service Commissioner's Directions 2013 (the Directions). Agency s15(3) procedures may prescribe the form of that written record.

7.2.13 A breach decision might include:

  • a summary of the evidence considered by the decision-maker
  • where the decision-maker also considered a recommendation from an investigator, the decision-maker's response to the recommendation, including reasons for accepting or not accepting the investigator's recommendations. The investigator's report could be attached to avoid the need to reproduce the detail of the report in the decision record
  • findings of fact about what the person under investigation has done or not done. The findings need to be as specific as possible and, wherever possible, linked to specific events
  • a decision as to whether what happened amounts to misconduct and, if so, which element(s) of the Code were breached
  • the reasons for reaching these conclusions.

7.2.14 The Administrative Review Council (ARC) Best-Practice Guide Decision Making: Reasons provides guidance for administrative decision-makers on documenting reasons for decisions.38

Advising the former employee or employee of the breach decision

7.2.15 It is good practice to inform a person found to have breached the Code in writing of the breach determination decision and to advise them of their rights of review. 39

7.2.16 Both employees and former employees found to have breached the Code have the right to seek review of the determination under s33 of the Public Service Act 1999 (PS Act). Seeking a review will not operate to stay the finding of breach or, in the case of employees, consideration of any sanction. For further information see Part III, Section 9 of on Review of actions and other review optionsof this guide.

7.2.17 An employee found to have breached the Code must be informed of the breach determination before any sanction can be imposed (clause 6.4 of the Directions). A letter to the employee for this purpose could:

  • enclose a copy of the breach determination decision record and, if appropriate, the investigation report, if any
  • inform the employee of the process for deciding sanction
    • It may be appropriate at this stage to provide the employee with the details of the actually sanctions being considered and the factors under consideration in determining a sanction – see Part II, Section 7.3 Making the sanction decision of this guide for further information.
  • as indicated, notify the employee of the right to seek review of the determination under s33 of the PS Act.

7.3 Making the sanction decision

The purpose of imposing a sanction on an employee

7.3.1 Once a determination has been made that an employee has breached the Code, the next stage in the misconduct process is consideration of an appropriate sanction.

7.3.2 Sanctions are intended to be proportionate to the nature of the breach, to be a deterrent to the employee and others and to demonstrate that misconduct is not tolerated in the agency.

7.3.3 Sanctions are also intended to provide a clear message to the employee that their behaviour was not acceptable. Where a sanction is too severe it is likely to be seen as unfair and may be counterproductive.

Imposing a sanction

7.3.4 A sanction can only be imposed on an employee who is found under the agency's s15(3) procedures to have breached the Code (clause 6.4 of the Directions).

7.3.5 Other administrative action such as counselling, training, mentoring, closer supervision or mediation may be considered more appropriate than a sanction. Such actions may be taken in addition to a sanction if they are likely to assist the employee to change their future behaviour.

Sanction decision-maker

7.3.6 A sanction decision-maker is a person who has been given a delegation to impose a sanction from the range set out in s15(1) of the PS Act. This power could be delegated to a person outside the agency or outside the APS. The prior written consent of the Australian Public Service Commissioner must be obtained if an agency wishes to delegate the sanction decision-making power to a person who is neither an APS employee, nor a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth40 (ss78(7) and (8) of the PS Act).

7.3.7 Further information on the role of the sanction decision-maker is at Appendix 10 Sanction decision-making checklist.

7.3.8 The framing of the delegation instrument should use broad language, bringing in relevant powers/functions under the PS Act and the Classification Rules 2000. The delegation instrument could be expressed in the following way.

I, [agency head name], [title], [agency], acting under my powers of delegation under the Public Service Act 1999 (the Act) and the Public Service Classification Rules 2000 (the Classification Rules), delegate to [name], my powers under the Act and the Classification Rules to impose on an APS employee in [agency] who has been found (under procedures established under subsection 15(3) of the Act) to have breached the APS Code of Conduct, the sanctions set out in subsection 15(1) of the Act.

7.3.9 This gives the sanction decision-maker authority to impose the sanction of termination of employment under s29 of the PS Act, or to impose a reduction in classification under the Classification Rules, as well as the power to impose any of the other sanctions specified in s15(1) of the PS Act.

Separate sanction decision-maker

7.3.10 As set out in Part II, Section 7.1.2 of this guide, it is recommended that agencies separate the roles of breach decision-maker and sanction decision-maker, subject to the requirements in the agency's s15(3) procedures.

7.3.11 Having separate decision-makers does not prevent the breach decision-maker from recommending a sanction(s). However, the sanction decision-maker needs to exercise the sanction power independently, based on their consideration of the relevant matters. In making the sanction decision, the sanction decision-maker accepts, and acts on the basis of, the findings of the breach decision-maker.

Questioning the decision on breach of the Code

7.3.12 A sanction decision-maker may form the view that there has been a serious procedural flaw affecting the validity of the breach determination decision, for example a failure to give an employee an opportunity to comment on adverse material. A sanction decision-maker does not have the power to amend the breach determination nor to review the decision-making process. In these circumstances it may be appropriate to seek legal advice on available options.

Sanctions available

7.3.13 A sanction decision-maker may impose one or more of the following sanctions (s15(1) of the PS Act):

  • termination of employment
  • reduction in classification
  • re-assignment of duties
  • reduction in salary
  • deductions from salary, by way of fine41
  • a reprimand.

7.3.14 There is no provision in the PS Act for any other form of sanction, but other management action may be taken in order to reduce the risk of further misconduct e.g. restricting an employee's access to the internet following a finding of internet misuse. Any such action should clearly be cast as management action and not as a sanction.

7.3.15 A determination that misconduct has occurred does not necessarily mean that a sanction will be imposed. A decision can be taken that no other action is necessary or that other remedial action may be appropriate.

Consistency of sanctions

7.3.16 It is important that there is a degree of consistency within an agency in the use of sanctions for the same type of misconduct, where circumstances are essentially similar. However, there should not be a simple, 'formula driven' approach. Differences in sanctions between cases within an agency should reflect the particular circumstances of both the misconduct and the employee.

7.3.17 To assist in maintaining consistency, agencies may find it helpful to:

  • consider limiting the delegation to apply a sanction to a small number of people within the agency and further limit the number of people with the delegation to impose more serious sanctions
  • provide clear guidelines on the factors to be considered in deciding on sanctions
  • have available a strong specialist corporate and/or legal resource that can be consulted by sanction decision-makers
  • establish a database of cases and sanctions, and indicate that it can be consulted, having regard to privacy requirements, when deciding sanction.

7.3.18 Using a database to monitor cases and the imposition of sanctions also assists agencies to identify trends, for example in types and numbers of misconduct cases. Such databases would assist in responding to any request for information from the Australian Public Service Commissioner, for example in relation to the annual State of the Service Report.

Procedural fairness in the sanction process

7.3.19 Provisions in the PS Act and Directions emphasise the need to ensure procedural fairness in relation to any decision to impose a sanction on an APS employee.

7.3.20 Sanctions may only be imposed consistent with the agency's s15(3) procedures. In line with the Directions, the agency's s15(3) procedures must include a requirement to the effect that a sanction may not be imposed unless reasonable steps have been taken to

  1. inform the employee of:
    1. the determination; and
    2. the sanction or sanctions that are under consideration; and
    3. the factors that are under consideration in determining any sanction to be imposed; and
  2. give the employee a reasonable opportunity to make a statement in relation to sanctions under consideration.

7.3.21 The employee should be informed of the sanctions actually being considered rather than the range of sanctions available. The employee must be given a reasonable opportunity to comment on the proposed sanction, and the factors under consideration, before a decision on sanction is made.

7.3.22 Employees should be informed, consistent with the agency's s15(3) procedures, of how long they have to respond and whether the response can be oral or in writing. What can be considered 'a reasonable opportunity' to respond to the proposed sanction(s) depends on the relevant circumstances, including the extent of the misconduct and the seriousness of the breaches, the capacity of the employee to respond, and the sanction under consideration. Whether the response is oral or in writing may depend on the complexity of the matters the employee wishes to raise and/or the capacity of the employee to provide a written statement.

7.3.23 The sanction decision-maker needs to consider the employee's comments before finalising the sanction decision. This deliberative process should include an impartial consideration of the employee's comments concerning both the sanction(s) that might be applied, and any information or personal factors that may be relevant to that decision. It is good practice for the decision-maker to document this deliberation.

7.3.24 If the sanction decision-maker is inclined to impose a more severe sanction than was communicated to the employee, the decision-maker must advise the employee and give them a further reasonable opportunity to comment.

Factors to be considered in determining the sanction

7.3.25 As indicated previously, 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. Sanctions are intended to be proportionate to the nature of the breach, provide a clear message to the relevant employee that their behaviour was not acceptable, be a deterrent to others and demonstrate that misconduct is not tolerated in the agency. Some guidance on what agencies may reasonably and lawfully do to use the processes for handling misconduct as general deterrence is included in in Part III, Section 10 Quality assurance of this guide.

7.3.26 The sanction should focus on the seriousness of what the employee has done. The number of elements of the Code breached is not, of itself, a relevant consideration. Prior misconduct is relevant to the imposition of a sanction and might usefully be taken into account by the sanction decision-maker where it:

  • indicates that the employee was, or should have been, well aware of the standard of conduct expected and the potential consequences of misconduct
  • demonstrates that the employee may be unwilling to adhere to the standard of conduct expected.

7.3.27 Case law indicates a range of other factors that are, or may be, relevant in determining the level of a sanction. These are outlined below.

  • The nature and seriousness of breach including:
    • the type of conduct involved e.g. discourtesy as compared to theft
    • amounts, values or quantities e.g. a minor degree of unofficial photocopying as compared to running a business using internal mail facilities
    • the period over which the misconduct occurred
    • evidence of any personal benefit from the breach
    • the actual and potential consequences of the employee's conduct.
  • The degree of relevance to the employee's duties and the reputation of the agency and the APS, including
    • the seniority of the employee, with more senior employees generally expected to set an example for more junior staff, and required to exercise a greater degree of judgement
    • whether a breach of trust was involved
    • whether the nature of the breach has affected the confidence of the agency in the employee's ability to perform their current duties
    • any special job requirements e.g. to maintain professional and ethical standards
    • extent to which the misconduct affects the reputation of the agency and the APS.
  • Whether the misconduct was uncharacteristic including:
    • the length of service, balancing a previously unblemished record against the expectation of greater awareness of behavioural requirements
    • whether there are records of previous counselling or breaches of the Code about related issues
    • the extent to which there is evidence that the behaviour is atypical—to assess this, the behaviour over a longer period may need to be examined e.g. any records of discussion with the employee within the last two years. Relevance of previous behaviour diminishes over time
    • the employee's attempts to stabilise any personal situations impacting on work, for example through accessing employee assistance schemes
    • support by colleagues and supervisors e.g. reports or references in relation to work performance and general character.
  • Response to the misconduct, and the likelihood of recurrence including:
    • whether the employee admits the breach, shows a willingness to take responsibility, shows remorse and understands the seriousness of the breach
    • cooperation with the investigation
    • whether the employee has reflected on the action and how it can be avoided in the future and their commitment not to repeat the breach in the future
    • the effect of the proposed sanction on the employee, including any loss of earnings already incurred by the employee as a result of suspension.
  • The presence of mitigating factors that may warrant the imposition of a lesser sanction than might otherwise have been imposed including:
    • the degree of responsibility for the breach and whether there was any provocation, persuasion, or even coercion, by other employees
    • the intention of the employee to breach the Code and whether the breach was premeditated or involved a spur of the moment decision
    • the extent to which an employee's disability, health or other factors may have influenced their conduct, although care needs to be taken not to imply different standards of conduct based on the personal circumstances of employees
    • age, experience and length of service
    • the level of guidance provided by the agency in relation to the Code in general and explicit guidance or directions about the particular breach, including existence of consistently applied policies
    • extent to which the breach may have reflected a culture or common practice in the work area which needs to be addressed as a systemic problem
    • any procedural issues, for example, unreasonable delay between the matter first coming to notice and the sanction being imposed.

7.3.28 Factors that may not be relevant would include claims that the employee found the misconduct process stressful or that the employee has incurred legal expenses.

Recording the sanction decision and advising the outcome

7.3.29 A written record must be made of the sanction decision. If the employee was provided with a statement of reasons, the record must include that statement of reasons (clause 6.7 of the Directions). Agency s15(3) procedures may prescribe the form of that written record. A sanction decision might include:

  • a description of the actions and behaviours and what elements of the Code were breached
  • the decision-maker's analysis of the evidence
  • the decision-maker's assessment of the seriousness of the breach
  • the decision-maker's assessment of aggravating and mitigating factors, if any
  • the decision on whether or not a sanction needs to be imposed and, if not, the factors the decision-maker considers relevant to taking other management action as an alternative
  • the sanction.

7.3.30 The employee should be promptly notified in writing of the sanction decision and of their review rights. See Part III, Section 9 Review of Actions and other review options of this guide for more information.

7.3.31 Any suspension from duty must end at this point (regulation 3.10(6) of the Public Service Regulations 1999 (PS Regulations) refers).

Date of effect

7.3.32 The date of effect of a sanction will not necessarily be the same as the date on which the sanction was decided. It may be necessary to allow time for administrative action to be taken to put the sanction into effect, for example, organising an appropriate placement for a re-assignment of duties.

7.3.33 The date a sanction takes effect is not delayed where an employee applies for a review of the breach and/or sanction decision, by the Merit Protection Commissioner.

7.4 When particular sanctions may be appropriate

Termination of employment

7.4.1 Termination of employment is the most severe of sanctions. It may be appropriate where:

  • the misconduct is so serious that it is no longer appropriate that the employee remain in the APS
  • the employee, through their action, has repudiated a basic element of the employment relationship e.g. by indicating that they do not accept the need to follow lawful and reasonable directions from their managers.

7.4.2 APS employees whose employment is terminated are able to seek review in the Fair Work Commission (FWC) or the courts. Below are some FWC, Federal Court, or other courts cases where findings relating to the termination of employees were made.42 The Australian Public Service Commission's publication Terminating APS employment: The legislative framework43 is also relevant.

Examples of behaviour found to breach the Code confirmed as a valid reason for termination by the Fair Work Commission, Federal Court or other court

While every case needs to be considered in the context of its particular circumstances, examples of behaviour determined to be a valid reason for termination of employment by the Fair Work Commission (FWC) are provided below as a guide. It may also be helpful to agencies to be aware of observations made during hearings on a range of Code matters.

Repeated and consistent failure to treat persons with respect and courtesy, and without harassment, in connection with APS employment as required under s13(3) of the PS Act.

  • An employee's employment was terminated after behaviour that included making blatantly false allegations, dogged refusal to acknowledge relevant policies and the Code, harassment of fellow employees and managers; concoction of assault stories; and inability to communicate with other staff and to conform to normal behavioural standards (McKeon v Centrelink, PR911316—this case also involved breaches of s13(1) and s13(5) of the PS Act).
  • In another decision, the FWC noted that, despite warnings, the approach of the employee in relation to providing co-workers with respect and courtesy did not change (Curr v ATO, PR953053).
  • An employee's employment was terminated, and the termination was upheld on appeal, when the employee continued to use extreme language to impugn the reputation of other employees in the department, make vexatious and malicious accusations about other employees, and failed to treat departmental employees and others with respect and courtesy and without harassment. (Salmond v Department of Defence [2010] FWA 5395 and on appeal Salmond v Commonwealth of Australia (Department of Defence) [2010] FWAFB 9636).

Serious failure to behave with honesty and integrity (as required under s13(1) of the PS Act)

  • failure to disclose dismissal from previous employment for Code breaches along with failure to declare participation for profit in a private sector company whose business related to the business of the agency (also breached s13(9) and (11)) (Ahmed v Department of Immigration and Multicultural Affairs, PR916461).
  • misuse of departmental credit card (Department of Employment and Workplace Relations v Oakley, PR954267—also involved breach of s13(5), (10) and (11)). This decision is also 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 preferable to suspension.

Failure, generally repeatedly, to comply with lawful and reasonable directions (as required under s13(5) of the PS Act)

  • directions in relation to return to duty (A Romanov-Hughes v Department of Defence, PR920194).

Serious misuse of Commonwealth resources (relating to s13(8) of the PS Act)

  • receiving, storing and sending pornographic or otherwise sexually explicit emails or other offensive material using the employer's email system (Williams v Centrelink, PR942762—also found to be a breach of s13(11)—and O'Neile v Centrelink, PR973658).

Reduction in classification

7.4.3 Reduction in classification is an appropriate sanction where, based on the misconduct, the employee can no longer be trusted to perform the duties of their current position, or another position, at the same level of responsibility. For example, a reduction in classification may be the best sanction where an employee has demonstrated by their behaviour that it is not appropriate for them to have any supervisory responsibilities.

7.4.4 Reduction in classification is also appropriate where termination of employment would be warranted but for mitigating factors that suggest that the employee should be given a chance to redeem themselves.

7.4.5 Discussions need to take place within the agency to ensure that duties are available at the classification level proposed, before the sanction of reduction in classification is imposed.

7.4.6 A reduction in classification cannot be made for a specific period. The employee remains at the reduced classification until he or she secures higher duties or a promotion to their original, or higher, classification in line with normal merit-based selection. See also Part III, Section 8.4 Considering misconduct in the selection process of this guide.

7.4.7 An employee reduced in classification under s15(1)(b) of the PS Act would have their salary reduced commensurately. The sanction decision-maker needs to consider the agency's pay scales and specify not only the new classification but also the appropriate pay point within the classification. Factors to consider include:

  • The level to which an APS employee's salary is to be reduced may be informed by the terms of the industrial agreement applying to their employment.
  • Where the level to which an employee's salary is to be reduced is not clear from the relevant industrial agreement, it is recommended that the sanction decision-maker impose two sanctions—a reduction in classification under s15(1)(b) and a reduction in salary under s15(1)(d)—to ensure that there is authority to reduce the salary to a particular point. It is possible for more than one sanction to be applied to an employee found to have breached the Code; if the sanction decision-maker is satisfied that more than one sanction is appropriate in the circumstances.

7.4.8 Where a sanction decision-maker has not relied on the powers in s15(1)(b) and (d) to reduce classification and specify a lower salary, it would be appropriate to place the employee on the top pay point at the lower classification.

Re-assignment of duties

7.4.9 The sanction of re-assignment of duties at the same classification level, including to a different location, may be appropriate where the conduct in question does not warrant termination of employment but the integrity and effectiveness of the APS may be compromised if an employee is not removed from a particular location or from their present duties. For example, this could occur where:

  • the nature of the employee's conduct is such that it may be difficult for colleagues to continue working harmoniously with them
  • an employee is no longer trusted to perform a particular aspect of their current duties.

7.4.10 The re-assignment of duties may be obvious to colleagues and the subject of gossip and speculation. Agencies need to consider options to communicate this decision in a way that minimises speculation and other possible adverse consequences.

7.4.11 Where the re-assignment of duties involves a change of location, it is advisable to take into account the impact on the employee, such as the financial costs, and the effect of dislocation on the employee and his or her family. The sanction delegate should also take into account the financial impact on the employee of loss of allowances, such as shift work allowances, where relevant.

7.4.12 A re-assignment of duties may be imposed for a defined period if it is considered appropriate to return the employee to their former duties after a specific period.

Reduction in salary

7.4.13 A reduction in salary can be used to reinforce the seriousness with which the employee's conduct is viewed. It may be appropriate where the employee's conduct does not indicate that he or she understands the seriousness of the breach they have committed.

7.4.14 A reduction in salary can be imposed for a specified and temporary period or an unspecified period. A reduction in salary should be imposed in a reasonable and proportionate way. For this reason, it is advisable that agencies set the reduction in salary for a specified and temporary period and state that period clearly in the sanction decision.

7.4.15 At the end of the period of reduced salary, the employee is entitled to be paid the salary at the level the employee would have received if they had not been subject to a temporary reduction in salary.

7.4.16 The amount of salary to be reduced is a matter for the sanction delegate. However, as this is a different and possibly a lesser sanction than a reduction in classification, the reduction in salary could be an amount valued at less than a reduction in classification.

7.4.17 Generally, any reduction in salary will be subject to a subsequent salary event, such as a promotion or a salary increase provided for in an industrial agreement. The likelihood of such events occurring during a period of temporary reduction should be considered by the sanction decision-maker, given that the effectiveness of the sanction may be reduced. It is, however, possible for an agency to impose a salary reduction for a specified period that makes provision for how the reduction would interact with any subsequent salary event. The sanction decision could state, for example, that there will be 'a reduction of 10% in the salary which would otherwise be payable from time to time over a 12-month period'.

Deductions from salary (fine)

7.4.18 This sanction may be appropriate for less serious breaches, where the agency needs to reinforce its concerns about the employee's conduct by way of short term financial impact. A sanction of a fine may be imposed by way of a one-off deduction or by deducting an amount from salary each pay for a short defined period. Deductions over a lengthy period would minimise the impact of the sanction. It is appropriate for the sanction decision-maker to decide the period of deductions taking into account any mitigating factors, including financial hardship, raised by the employee.

7.4.19 Deductions from salary are limited to no more than 2% of an employee's annual salary. In determining the upper-limit of a fine in a particular case, the decision-maker needs to consider the meaning of the term 'salary' as provided for in the agency's remuneration arrangements.

Reprimand

7.4.20 A reprimand is the least severe form of sanction and is most appropriate in situations where the misconduct is not of a grave nature, or where it is clear that the employee has learned from the misconduct process and presents no appreciable risk of further misconduct.

7.4.21 A reprimand acts as both a mark of disapproval of past conduct and as a warning for the future. A reprimand is not counselling but rather delivers a clear message to the employee that their behaviour was found to be below the acceptable standard.

7.4.22 Consideration also needs to be given to who would be the most effective person to deliver the reprimand. Generally a reprimand delivered by a higher level manager will carry greatest weight.

7.4.23 A reprimand is subject to the same standards of recordkeeping as other sanctions. For this reason it may be practical for the reprimand to be administered at a face-to-face meeting, with a written record of the reprimand, which is provided to the employee at the conclusion of the meeting, and a copy placed on the misconduct file.

7.5 Applying multiple sanctions for one breach

7.5.1 It is possible to impose more than one sanction, if the sanction decision-maker is satisfied that more than one sanction is appropriate in the circumstances. For example, an employee may be re-assigned duties and have a fine imposed, be reprimanded and have another sanction applied, or, as described above, an employee may have both their salary and classification reduced.

7.6 Applying sanctions for multiple breaches

7.6.1 It is not necessary to impose a separate sanction for each breach of an element of the Code. However, where the breaches are unrelated, for example a harassment incident and an unrelated theft, separate sanctions may be appropriate.

7.6.2 When an employee has breached several elements of the Code it is necessary to consider the totality of the behaviour and its seriousness when considering sanction(s) to ensure the total effect is in proportion. The total effect should be neither too harsh nor too lenient, in relation to the seriousness of the breaches when considered as a whole. This has been described as the totality principle: 'take a last look at the total to see whether it looks wrong' (Mill v The Queen (1988) 166 CLR 59).

7.7 Examples of sanction decisions

7.7.1 The Merit Protection Commissioner publishes summaries of decisions made after reviewing agency misconduct decisions, including sanction decisions. 44 These case summaries may be helpful when considering an appropriate sanction.

7.8 Employee moves to another APS agency before a determination or a sanction is made

7.8.1 An agency may become aware that an employee has received a job offer from another agency after the employee has been notified, in accordance with the agency's s15(3) procedures, that they are suspected of misconduct. Any move between APS agencies under s26 of the PS Act, in this circumstance, will generally be deferred by the operation of clauses 2.27, 2.27A and 2.31 in the Directions.

7.8.2 Clause 2.27A provides that, unless the original agency head (the 'losing agency') and the new agency head (the 'gaining agency') agree otherwise, the movement, including on promotion, does not take effect until the misconduct action is resolved. The misconduct action is resolved by either:

  • a determination being made under the agency's s15(3) procedures about the suspected misconduct, or
  • a decision that a determination is not necessary.

7.8.3 Where an employee suspected of having breached the Code moves, with the agreement of the agency heads, before the misconduct action is resolved, the gaining agency may initiate an investigation into the suspected misconduct in accordance with the gaining agency's s15(3) procedures.

7.8.4 It would be open to the agency head of the gaining agency to use the expertise of employees from the losing agency in conducting a misconduct investigation. Regulation 9.2 of the PS Regulations allows the losing agency to disclose information to the gaining agency where it is relevant to the agency head's employer powers, including a misconduct investigation in the gaining agency.

7.8.5 Where an employee moves after a finding of a breach, but before the imposition of a sanction, it is not necessary for a fresh investigation to be carried out. A sanction delegate in the gaining agency head can impose a sanction, in accordance with the gaining agency's s15(3) procedures, on the basis of the losing agency's finding of breach. An agency head's power under s15 of the PS Act to impose a sanction extends not only to employees found under that agency's s15(3) procedures to have breached the Code, but also to employees found to have breached the Code under another agency's s15(3) procedures.

7.9 Machinery of Government changes

7.9.1 Section 72 of the PS Act deals with machinery of government (MOG) changes. When an employee who is the subject of a misconduct investigation is moved from their agency to another under s72 of the PS Act it is open to the gaining agency to decide whether it wishes to continue action to determine whether the employee breached the Code in the previous agency. This might be influenced by, for example, the seriousness of the suspected misconduct, and the relevance of it to the business of the gaining agency, or the seniority of the employee.

7.9.2 If the gaining agency decides to conduct an investigation, the investigation must be conducted under the gaining agency's s15(3) procedures.

7.9.3 The Australian Public Service Commissioner may determine special arrangements in respect of an employee moved under MOG changes if certain circumstances exist concerning the employee's employment. Section 72(5A) of the PS Act and regulation 8.3 of the PS Regulation set out these circumstances. They include where:

  • a Code investigation is underway in the former agency
  • a sanction is imposed in relation to a Code investigation, including a sanction that may have continuing effect, and
  • an employee is suspended in their former agency in response to a suspected breach of the Code.

7.9.4 It is important that agencies consider this when a MOG change is under discussion. Agencies can seek further advice from the Australian Public Service Commission if a determination of this type is considered appropriate.

7.10 Effect of misconduct findings on an employee's security clearance

7.10.1 The Australian Government Security Vetting Agency (AGSVA) advises that it is the responsibility of security clearance holders to report to AGSVA any changes in their circumstances, including disciplinary procedures. AGSVA will assess the change in circumstances. Not all changes in personal circumstances require action.45

7.10.2 It would be good practice for agency guidance material to include information on how findings of breaches of the Code by security clearance holders are to be reported to AGSVA. It is recommended that this be done in consultation with the agency's security area.

7.11 Key points for agency guidance material

7.11.1 Agencies may wish to consider developing a checklist and a template for reports and sample letters to assist decision-makers and to ensure both consistency in reporting standards and the quality of the decisions. The checklists in the appendices to this guide may be useful in developing agency checklists.

7.11.2 Agency guidance material could include the following:

  • advice on the role of the breach decision-maker and sanction decision-maker
  • emphasis on the need for breach decision-makers and sanction decision-makers to follow agency s15(3) procedures and to have due regard to procedural fairness
  • advice for the breach decision-maker and sanction decision-maker about preparing a decision record
  • advice on any processes used within the agency to monitor the quality of breach of the Code decisions
  • an explanation of the sanctions that can be imposed
  • the factors to be considered in determining an appropriate sanction
  • some agency-specific examples of when particular sanctions may be appropriate
  • the importance of consistency within agencies in imposing sanctions
  • references to sources of advice such as databases, the agency HR manager or other corporate expertise, this guide, the Merit Protection Commissioner's case summaries, and the Australian Public Service Commission's Ethics Advisory Service
  • cover the handling of situations where evidence does not support misconduct having occurred
  • advice on how to handle a case where an employee moves to another agency
  • guidance on how findings of breaches of the Code by security clearance holders are to be reported.

Footnotes

38 The publication is available on the ARC website at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx

39 Where the Merit Protection Commissioner has conducted an investigation and made a decision, the finding is reviewable under the Administratie Decisions (Judicial Review) Act 1977

40 That is a statutory office holder or another agency head

41 Regulation 2.3 of the PS Regulations limits the deduction to no more than 2% of the APS employee's annual salary.

42 The AGS Legal briefing 104 Misconduct in the Australian Public Service also provides information on unfair dismissal cases considered by the FWC.

43 www.apsc.gov.au/publications-and-media/current-publications/terminating

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

45 www.defence.gov.au/agsva/maintaining-your-clearance.html