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Last updated: 28 July 2008
Handling Misconduct : A human resources practitioner's guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct
This good practice guide has been developed to assist human resource practitioners in agencies to review and improve their guidance material and procedures for reporting and dealing with suspected breaches of the Code. Actions that are suspected breaches, or determined to be breaches of the Code, are referred to as suspected misconduct or misconduct in this guide.
The material in this document is provided for guidance and should not be relied upon as a substitute for detailed advice when making decisions in Code of Conduct cases. See specifically the material under the heading 'Limitations to this guide', for further information.
Contents
Introduction
- Acknowledgement
- Outline
- How to use this guide
- Further advice/sources of information
- Legal issues
Part 1: Framework and overview for handling misconduct
- Framework
- Overview of the process for handling misconduct
- Misconduct in the APS
- Agency-based codes of conduct/expected behaviours
- Relationship between misconduct and performance management processes
- The connection between work and misconduct
- Misconduct that may also be a criminal act
- The process for handling misconduct
- Roles and responsibilities in handling misconduct
- Key points for agency guidance material
Part 2: Main steps in handling misconduct
- Reporting suspected misconduct
- Considering a report of suspected misconduct
- Investigative process
- The determination and sanction
Part 3: Administrative issues and quality assurance
- Recordkeeping and access to records
- Review of actions
- Quality assurance and streamlining the process
Appendix 1: Legislative instruments
Appendix 2: Suggested agency procedures under section 15(3) of the Public Service Act 1999
Appendix 3: Employees suspension checklist
Appendix 5: Checklist of key points for agency guidance material
Appendix 7: Sample letter advising complainants on the outcome of an investigation
Introduction
The APS Values (the Values) and the Code of Conduct (the Code) provide the standard of behaviour expected of agency heads and APS employees. Under the Public Service Act 1999 (the PS Act), responsibility for promoting the Values and for developing procedures to handle breaches of the Code within their agency lies with agency heads. Action taken by agency heads must be consistent with the requirements of the PS Act and the instruments issued under that Act, including the Public Service Regulations 1999 (the Regulations) and the Public Service Commissioner's Directions 1999 (the Directions).
This good practice guide has been developed to assist human resource practitioners in agencies to review and improve their guidance material and procedures for reporting and dealing with suspected breaches of the Code. Actions that are suspected breaches, or determined to be breaches of the Code, are referred to as suspected misconduct or misconduct in this guide.
This guide, together with the new Australian Public Service Commission (the Commission) publication, Handling Misconduct Summary Guide, complements other Commission publications, in particular:
- APS Values and Code of Conduct in practice—A guide to official conduct for APS employees and agency heads1
- Respect: a good practice guide to promoting a culture free from bullying and harassment in the APS.2
The Summary Guide and this HR practitioner's guide replace the 2002 Commission booklet Managing Breaches of the APS Code of Conduct.
Acknowledgement
In developing the guide, the Commission has drawn upon the results of an evaluation undertaken in 2004 into managing suspected breaches of the Code. We acknowledge the contribution of, and thank, the Department of Foreign Affairs and Trade, the Department of Finance and Administration, the Child Support Agency, the Australian Taxation Office, the Department of Health and Ageing and Centrelink. We would also like to thank Centrelink for providing us with access to its recent agency guidance developed by the Australian Government Solicitor. Without the assistance of these agencies, this practitioner's guide would not have been possible.
1 <http://www.apsc.gov.au/values/conductguidelines.htm>
2 <http://www.apsc.gov.au/publications06/respect.htm>
Outline
The guide is in three parts. The underlying theme is developing processes which adhere to the legislative requirements but that are also both timely and efficient.
Part 1 (Chapters 1–2) outlines the legislative framework and some general principles applying to reporting and dealing with suspected misconduct (i.e. suspected breaches of the Code) in the APS.
Part 2 (Chapters 3–6) outlines steps and processes involved in reporting and managing of misconduct.
Part 3 (Chapters 7–9) covers a variety of issues related to handling misconduct including quality assurance mechanisms that can be used by agencies to ensure a timely and effective approach to conduct issues in the workplace.
The Commission would welcome any comments on the usefulness of this version. Comments can be submitted by email to employmentadvice@apsc.gov.au. Please use 'Handling misconduct agency comments' in the subject heading of the email.
How to use this guide
While the guide will be useful for APS employees, its primary function is to assist human resource areas in agencies to develop a timely and effective approach to managing suspected and proven misconduct.
At the different stages of the process for handling misconduct, the relevant issues and appropriate good practice principles are identified and discussed. At the end of relevant chapters, the guide suggests key points that should be addressed in agency guidance material. These are included as a checklist in Appendix 5. Other appendices provide further information pertaining to misconduct including the legislative instruments, relevant records in the National Archives of Australia Administrative Functions Disposal Authority, an employee suspension checklist, and a checklist of key points to be included in agency guidance material. Relevant parts of this checklist are included at the end of each chapter.
Agencies may use or adapt the information in this guide to develop, or revise existing, agency guidance material.
The suggested material for incorporation into agency guidance included in this publication is not intended to be prescriptive. It is included to be of practical assistance to agencies but should be adapted to suit agencies' circumstances. The good practice principles can also be incorporated in other ways into existing agency guidance material and procedures.
Limitations of this guide
When using this guide, agencies must note that it refers to the legislative provisions in place in February 2007. In addition, what constitutes a breach of the Code is frequently affected by evolving case law.
The Commission has used its best endeavours to ensure the accuracy of the material at the time of writing, and will update the document as required. The Commission will also endeavour to notify agencies of any significant changes to the misconduct regime through our website when they come to our attention.
However, we are unable to guarantee that this guide is complete, correct and up-to-date at any particular point of time, or that it is relevant to the particular circumstances of any matter. It should not therefore be relied upon as a substitute for detailed advice when making decisions in Code of Conduct cases. Agencies should consider obtaining legal advice before making a decision if they are uncertain of their obligations or there is any element of uncertainty or risk involved.
Further advice/sources of information
Agencies can access the latest information on the Values and the Code through the Commission's website at www.apsc.gov.au
Other useful sources of information on issues relating to misconduct are:
- material on the website of the Office of the Federal Privacy Commissioner
- legal briefings from the Australian Government Solicitor and other legal firms
- published decisions of courts and the Australian Industrial Relations Commission (AIRC).
Legal issues
The PS Act is interpreted and applied by all APS agencies. It is therefore important that the Commission be kept fully informed of current legal thinking on the interpretation of the Act in relation to misconduct so that this can inform the advice provided by the Commission to agencies.
Agencies are requested to liaise with the Commission when obtaining advice and forward copies of any legal advice that they obtain regarding the Act to the Commission, in line with Clause 10 of the Legal Services Directions.
These should be forwarded to:
Legal Services Unit
Australian Public Service Commission
16 Furzer Street
Phillip ACT 2606
