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Last updated: 19 February 2007

Handling Misconduct : A human resources practitioner's guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct

Part 1: Framework and overview for handling misconduct

1. Framework

Under the Public Service Act 1999 (the PS Act), agency heads are responsible for upholding and promoting the APS Values (the Values). Senior Executive Service (SES) employees are required to promote the Values by personal example and other appropriate means, and APS employees are required to uphold the Values.The Values together with the APS Code of Conduct (the Code) form the statutory foundation underpinning the conduct of all APS employees.

The legislation does not refer to 'misconduct'. The term 'misconduct' is used in this guide as a convenient and readily understood label for conduct that breaches the Code. Any actions or behaviours must be referred to as suspected misconduct until a decision is made in accordance with established agency procedures that misconduct has occurred.

Legislative framework

Section 10(1) of the PS Act contains the Values which form the framework for good public administration and, together with section 13 and Regulation 2.1 of the Public Service Regulations 1999 (the Regulations), sets out the standards of conduct required of APS employees. The relevant legislative provisions in the PS Act (including the Values and the Code), the Public Service Commissioner's Directions 1999 (the Directions) and the Regulations are included in Appendix 1.

The Code applies to:

all APS employees (i.e. ongoing and non-ongoing employees and heads of overseas missions). It does not apply to locally engaged employees in overseas missions. (section 7, section 13, section 39, section 74 of the PS Act)
all agency heads, including secretaries of departments, heads of executive agencies and heads of statutory agencies (section 14(1) of the PS Act)
certain statutory office holders (sections 14(2) and (3) of the PS Act and Regulation 2.2).

Section 15(3) of the PS Act requires agency heads to develop procedures for determining whether an employee in their agency has breached the Code. This legislative requirement is supported by the Directions and the Regulations. If an employee is found to have breached the Code, an agency head may impose sanctions (section 15(1) of the PS Act).

The procedures must comply with the basic procedural requirements contained in the Directions (section 15(3)(a) of the PS Act) and must have due regard to procedural fairness(section 15(3)(b) of the PS Act) as the decisions made during the processes can be subject to administrative and judicial review. It is important, therefore, that anyone given responsibility for the various stages of the process—the investigation of the misconduct, the determination of whether there has been a breach of the Code and the setting of an appropriate sanction—understand the legal requirements of the processes and their obligations to all parties.

It is preferable for agency procedures to include a statement about how the person who determines whether a breach has occurred is to be selected or otherwise identified. An agency head may nominate any person to make that selection, but the procedures must clearly identify one person or position who can select a decision maker in each case.

Agency heads must take reasonable steps to ensure that every employee in their agency has ready access to the documents that set out the procedures (section 15(5) of the PS Act).

The Directions (Chapter 5) set out the basic procedural requirements with which an agency must comply in its procedures for determining whether an APS employee has breached the Code. These provisions include that:

before any determination about whether or not an APS employee has breached the Code is made, the employee must be informed of the details of the suspected breach (including any variation of those details) and the range of sanctions that may be imposed. The employee must also be given reasonable opportunity to make a statement in relation to the suspected breach (Clause 5.2 of the Directions).
the process for determining whether an APS employee has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows (Clause 5.3 of the Directions).
reasonable steps must be taken to ensure that the person who determines whether an employee has breached the Code is, and appears to be, independent and unbiased (Clause 5.4 of the Directions)
after a determination in relation to a suspected breach of the Code has been made, a written record stating whether the employee has been found to have breached the Code must be prepared (Clause 5.5 of the Directions). The Archives Act 1983 and the Privacy Act 1988 apply to records of this kind.³ Where the written record is to form the basis of a statement specifying the grounds for termination of employment (as required by section29(2) of the PS Act), the statement must also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based (section 25D of the Acts Interpretation Act 1901).

The PS Act and Directions contain requirements for the procedures about determining whether an APS employee has breached the Code and the PS Act provides for the range of sanctions that may be applied. There are no direct provisions covering the process of determining an appropriate sanction. In determining a sanction general administrative law standards apply, including procedural fairness, and decisions are subject to administrative and judicial review.

Where an employee changes status (from non-ongoing to ongoing, or vice versa) or moves to a different agency, the applicable procedures are those that apply to the employee's status or agency at the time when the process for determining the breach is commenced (or recommenced if an investigation had been underway in the old agency).

The APS whistleblowing scheme is provided for in the PS Act and the Regulations.

Section 16 of the PS Act prohibits the victimisation of, or discrimination against an APS employee who reports a breach or alleged breach of the Code to an agency head, the Public Service Commissioner, the Merit Protection Commissioner or a person authorised by them. Regulation 2.4 requires agency heads to establish procedures for dealing with such reports. Clause 2.5(1)(d) of the Directions provides that an agency head must put in place measures directed at ensuring that APS employees are aware of the procedures, and are encouraged to make reports in appropriate circumstances.

Other legislation of relevance to handling suspected misconduct or misconduct includes the:

Administrative Decisions ( Judicial Review) Act 1977
Freedom of Information Act 1982
Occupational Health and Safety (Commonwealth Employment) Act 1988
Privacy Act 1988
Workplace Relations Act 1996.

Handling misconduct

Taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the APS and thereby maintaining public confidence in public administration, rather than aiming to 'punish' the employee per se. Sanctions are intended to be proportionate to the nature of the breach, to be a deterrent to others and confirm that misconduct is not tolerated in the agency.

An agency's section 15(3) procedures to deal with misconduct and associated guidance material should be fair and reasonable, striking an appropriate balance between the interests of employees, the agency and the public.

It is advisable that the procedures for determining whether there has been a breach of the Code are kept relatively brief and be limited essentially to the requirements of the PS Act and the Directions.

Agencies need to emphasise to managers and delegates, the importance of complying with the agency procedures. As they are a legal instrument, failure to comply will leave the agency exposed to legal risk. In reviewing their procedures, agencies should make them as flexible as possible while still meeting the legislative requirements. This will help minimise the risk that investigators or delegates may later be found to have breached the agency's section 15(3) procedures.

Agencies may also wish to consider including provisions in the procedures which deal with the issues such as:

different processes for different categories of employees (e.g. ongoing and non-ongoing employees)
an abbreviated procedure in cases where the employee admits to breaching the Code.

The procedures can be supplemented by more detailed guidance material (along the lines of the advice provided in this guide) including guidance on setting an appropriate sanction.

The procedures could form an attachment to the guidance material. Suggested procedures can be found at Appendix 2 to this guide. An option for implementing these procedures is provided in the flowchart in Figure 1 included at the start of Part 2 of this guide.

Agencies should ensure that the wording of the guidance material avoids words that appear to be imposing mandatory requirements in addition to those required by the statutory framework when that is not intended (e.g. using 'must').

One significant advantage of having only brief procedures supplemented by more detailed guidance material is that if a case is challenged (in the Australian Industrial Relations Commission (AIRC) or the Federal Court, for example) it is then clear which are the mandatory procedures that are legally binding, as distinct from other material that has the status of guidance.

Not all cases of suspected misconduct need to be dealt with by a formal investigation to determine whether a breach of the Code has occurred. Misconduct action is part of a range of people management practices that agencies should have in place to encourage high quality performance.

Within the legislative framework agencies have adopted a variety of models for facilitating the reporting of misconduct, protecting whistleblowers and handling misconduct and suspected misconduct. The models vary particularly in the degree to which the processes are centralised or devolved. There is no single model that would suit the circumstances of all agencies. The material in this guide can be adapted to a range of models.

Terminology

The PS Act uses specific terminology to describe staffing activities. The terms used in the booklet have the following meanings:

'assignment of duties' refers to the action of the agency head in determining the duties of an employee (section 25)—section 25 also allows an agency head from time to time to determine the place or places where the duties are to be performed. (A related action is the 'reassignment of duties' which is one of the sanctions available under section 15).
'lower classification' refers to a classification which is in a lower APS Group in Schedule 1 of the Public Service Classification Rules 2000 than the one held by the employee.
'misconduct' is a generic term which refers to an action or behaviour by an APS employee who is determined to have breached the APS Code of Conduct. Prior to such a determination, the action or behaviour is referred to as suspected misconduct.
'misconduct action' refers to those processes, in relation to an individual, an agency carries out following the agency procedures established under section 15(3) of the PS Act and Chapter 5 of the Public Service Commissioner's Directions 1999.
'movement' refers to a move of an ongoing employee between agencies (section 26).
'non-ongoing employee' is an employee who is engaged for either a specified term or for the duration of a specified task or for duties that are irregular or intermittent as mentioned in sections 22(2)(b) and (c) of the PS Act.
'ongoing employee' is an APS employee engaged in accordance with section 22(2)(a) of the PS Act.
'promotion' means the ongoing assignment of duties to an ongoing employee at a higher classification than the one held by the employee (Direction 4.6). A promotion will also involve a 'movement' if the promotion is to another agency.
'sanction' refers to an action taken by an agency head from a range of possible sanctions set out in section 15(1) of the PS Act, in response to a finding that an employee in the agency who is found under the agency procedures to have breached the APS Code of Conduct.
'section 15(3) procedures' refer to the procedures established by the agency head in accordance with section 15(3) of the PS Act for determining whether an APS employee in the agency has breached the Code. In this guide they may also be referred to as agency misconduct procedures or misconduct procedures.
'whistleblowing' is a generic term which refers to an APS employee making a report of breaches or alleged breaches of the Code to an authorised person as set out in section 16 of the PS Act.

2. Overview of the process for handling misconduct

APS agencies, their employees and managers all have obligations in relation to dealing with suspected and proven misconduct. Agencies have obligations to provide their employees with clear guidance and training that covers how employees should conduct themselves in the workplace including the central role of the Values and the Code. Agencies should have procedures and processes in place that protect the integrity of the agency and the APS, identify questionable behaviour and ensure that action is taken to deal with misconduct.

APS employees must uphold the Values and comply with the Code. Agency heads and SES employees have an additional duty to promote the Values.

Misconduct in the APS

Misconduct refers to any action or behaviour by employees which breaches the Values and the Code. Any such action or behaviours must be referred to as suspected misconduct until a decision is made in accordance with established agency procedures that misconduct has occurred. The Code is reproduced in Appendix 1.

The Code applies to all APS employees.⁴ However, if an employee is serving a period of probation imposed as a condition of engagement, agencies can choose to handle behavioural issues within the probationary framework and not by applying the misconduct procedures. Agencies should refer to the Commission publication, Conditions of Engagement.⁵

In broad terms, an APS employee whose conduct does not comply with an element of the Code can be found to have breached the Code. Where an element of the Code contains more than one item, it may not be necessary for the employee to have breached all items in order for a breach of the Code to be determined to have occurred. In the case, for example, of section 13(3) of the PS Act, that requires that an employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment, an employee who was discourteous, but who has not engaged in harassing behaviour, could be found to have breached the Code.

Misconduct can vary from serious (e.g. large scale fraud, theft, misusing clients' personal information, sexual harassment and leaking classified documentation) to relatively minor (for example, a single, uncharacteristic angry outburst or use of the agency email system to send a low volume of inappropriate but inoffensive non-work related email to friends).

Not all suspected misconduct needs to be dealt with by implementing misconduct procedures.

With minor misconduct or in cases involving personality clashes, other approaches such as using the performance management system or using alternative forms of dispute resolution(such as mediation or counselling) may be the most effective way to manage the behaviour.

In all cases, however, it is important that the behaviour be addressed in some way and a record made of any action taken and the reasons for it. Minor types of misconduct, if unaddressed, may enable repeated inappropriate behaviour or escalate to more serious issues.

Agency-based codes of conduct/expected behaviours

Many agencies promulgate their own code of conduct or expected behaviours.

When an employee infringes an agency-based code or expected behaviours, the agency must be able to link the conduct or behaviour in question to a particular element in the APS Code of Conduct, if it is to form the basis of a misconduct action. Given that, it would be useful to minimise such additional codes and link any provisions of agency-based codes to the APS Code of Conduct in material that is distributed to employees.

Relationship between misconduct and performance management processes

There are different approaches to determining whether actions and behaviours should be dealt with under an agency's misconduct or performance management processes. Two common approaches are:

using a formal process except for very minor issues, and subsequently determining that either a reprimand, or no sanction, is appropriate, if the employee's response to the misconduct action satisfies the sanction delegate that a repetition of the behaviour is unlikely
using performance management measures to deal with certain types of misconduct (such as one-off incidents of bullying, harassment or rudeness to co-workers, managers or clients) as they arise.

While it may be appropriate to deal with minor misconduct issues in a variety of ways including through the performance management system, more serious cases of misconduct or repeated minor incidents would appropriately be dealt with under misconduct procedures.

Agencies will need to consider each case of unsatisfactory behaviour on its merits to determine whether it should be best handled through misconduct or performance management procedures.

Care needs to be taken if there is a medical reason for the unsatisfactory behaviour as many agencies' performance management processes exclude the application of the process where there is an apparent medical reason for a perceived failure to perform. Further, in the employment context it is not discriminatory to expect all employees to abide by a single conduct standard, regardless of physical or mental capability.⁶ As such, the correct approach in those circumstances is not to have regard to the disability in the course of determining whether there is a breach, but rather to consider it as a potential mitigating factor when applying a sanction. This is discussed in Chapter 6 under the heading 'Factors to be considered in determining the sanction').

The connection between work and misconduct

The various elements of the Code specify three different levels of connectedness between the standard of conduct and APS employment, as follows:

'in the course of employment'
'in connection with employment'
'at all times'.

The terms 'in the course of employment' and 'in connection with employment' apply to actions or behaviour where there is clearly some link to the duties performed by employees.

As a general rule, 'in the course of employment' is used in direct association with the particular conduct expected of APS employees at work, while 'in connection with employment' is usually used to address situations where an employee's actions may have some influence on how they perform their duties. The term 'at all times' means that conduct which is apparently unrelated to the performance of duties may be subject to the Code if it can be demonstrated that there is a real connection between the behaviour and its effect on the workplace.

There are other elements of the Code where the level of connectedness is not specified.

In these cases, connectedness is inherent in the element itself (e.g. the requirement to comply with any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction). Managers and employees need to be aware of these different levels of connectedness to fully understand the standards of conduct required.

Suspected misconduct that occurs outside the place of employment is an area which is influenced by evolving common law.

Those elements of the Code applying 'in the course of APS employment' (e.g. an APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment) can cover behaviour outside the workplace but in work- related contexts, such as work functions (e.g. Christmas parties) and business trips, would depend on factors such as:

whether the activity was sponsored or organised by the employer
where and when the behaviour occurred (e.g. did it occur at the workplace or during working hours, did a work function have a clear finishing time?)
whether a person was 'on duty' (e.g. acting in a representational capacity).

The term 'at all times' used in the element of the Code that requires that an APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS (section 13(11)) provides for a broader application to conduct outside of work hours than other elements of the Code. One example of a possible breach of section 13(11) could be harassment of one employee by another at a social event involving work colleagues outside of work (but not an event sponsored or organised by the employer).

Courts and tribunals have provided guidance on what misconduct by an employee outside of work is the legitimate concern of the employer. The AIRC has upheld termination of employment in circumstances where:

there was a clear connection between the employee's out of hours conduct and their employment and
the conduct was incompatible with the employee's duty as an employee or was likely to cause serious damage to the employment relationship.⁷

Misconduct that may also be a criminal act

Agencies can face difficult judgements where misconduct proceedings interact with criminal proceedings, including whether or not to commence misconduct proceedings concurrently with a criminal trial. Criminal proceedings may result from an employee's behaviour in the workplace as well as from his or her private actions.

Where an employee's behaviour may be both a breach of the Code and a criminal offence, misconduct action need not necessarily be delayed until criminal processes have been completed.⁸ Agencies should seek advice from the police and the Director of Public Prosecutions before alerting the employee of any allegations of misconduct.

A key consideration is the need to avoid prejudicing the criminal process. AGS has advised that an agency should not proceed with a misconduct action if the police or prosecuting authorities consider the misconduct action may prejudice criminal proceedings.

If there is some risk of prejudicing the criminal proceedings, agencies may initiate a misconduct action (putting the employee on notice that an action will ensue) but may immediately suspend the investigation pending the outcome of criminal proceedings.

The Commonwealth Fraud Control Guidelines 2002 make it clear that agencies must refer all allegations of serious or complex fraud involving Commonwealth interests to the Australian Federal Police. Agencies should discuss other suspected behaviour that involves potentially serious criminal conduct with the relevant law enforcement agency.

Criminal offences outside the workplace

The 'at all times' behavioural element of the Code may provide one of the bases for determining whether an employee who has been found guilty of a criminal offence committed outside the workplace has also breached the Code. In order for a breach to be found in these cases, it would be necessary to assess whether the criminal behaviour has compromised the integrity and good reputation of the APS, and the extent to which that behaviour has adversely affected the employee's position in the workplace.

Such an assessment should take into account:

the principle that APS employees are also citizens and like all other employees are entitled to a private life. In line with this principle, a criminal conviction for drink driving outside the work place, for example, where the employee was not required to drive a car as part of their duties is unlikely to be considered a breach of the Code.
certain criminal charges may have different impacts in different agencies depending on the nature of the charges and the role of the agency.

In serious criminal cases, it may be appropriate to suspend the employee from duty until the decision of the Court is known. Suspension in such cases is discussed in Chapter 4.

The process for handling misconduct

The process for handling misconduct can be divided into a number of stages:

receiving a report of suspected misconduct
initial consideration of the report to decide how best to handle the suspected misconduct
commencing a misconduct action under the misconduct procedures and undertaking an investigation
deciding whether the misconduct has occurred
imposing the appropriate sanction where necessary.

The different steps are discussed in detail in Chapters 3–6 and are illustrated in the flowchart in Figure 1 (see page 22) which provides an option for implementing the suggested agency procedures in Appendix 2. Agencies should also refer to the section in Chapter 9, under the heading 'Avoiding unnecessary delay'.

Roles and responsibilities in handling misconduct

The allocation of decision-making tasks associated with reporting and dealing with misconduct must not be inconsistent with the agency misconduct procedures and should be consistent with any associated agency guidance material. The range of different processes would include:

an investigator with no decision-making function who prepares a brief for a decision maker who may or may not have the delegation to impose a sanction
the decision maker conducts the investigation unsupported, determines a breach and exercises the sanction delegation
the decision maker conducts the investigation unsupported, determines a breach and makes recommendations to a separate sanction delegate
briefing an external investigator to determine a breach and make recommendations as to the appropriate sanction. The external investigator needs to be authorised to make such a determination in line with the agency's procedures.

Whatever approach is adopted, the associated guidance material should be clear about respective roles and responsibilities and that quality control mechanisms are built in.

There are a number of decisions that will be required in handling misconduct including:

the initial decision on how to handle the report of suspected misconduct (i.e. whether to take action under the agency's misconduct procedures or not)
deciding whether to suspend an employee and any review of that decision
deciding whether there has been misconduct
imposing a sanction.

Agencies need to consider whether the decision as to whether misconduct has taken place and the decision relating to imposing a sanction are to be made by the same person or whether to have separate decision makers. Even where it is permissible to have one decision maker for both tasks, it can (in some cases) be desirable to have different decision makers in order to avoid any bias issues. It is also generally desirable that the suspension delegate be a different person from the decision maker or delegate in relation to determining misconduct and/or the sanction.

Agencies must ensure that all people with responsibility for decision-making in handling a misconduct action have the appropriate authority to make that decision and that they both are, and are perceived as, independent and free of bias.

The rights of the employee suspected of misconduct

It is useful for guidance material to set out clearly the rights of the employee who is being investigated in relation to a suspected breach of the Code both for their information but also as a reminder to decision makers and other agency employees. At the minimum:

The identity of the employee who has been accused of misconduct (and the detail of the allegations) should be kept confidential as far as possible and managed on a 'need to know' basis, consistent with the requirements of the Privacy Act 1988.
Employees of the agency must not make statements that presume the 'guilt' or otherwise of the accused employee.
The investigation into a report of suspected misconduct should be handled in a timely, systematic and effective manner and be consistent with procedural fairness requirements.
Appropriate record keeping should be observed including disposal of misconduct records in accordance with agency procedures. Recordkeeping requirements and access to information are discussed in Chapter 7.

Agencies should note that, although an employee is generally bound to answer fair and reasonable questions relating to their activities as an APS employee, an employee suspected of misconduct cannot be lawfully directed to answer questions relating to the matter where this would tend to incriminate them. The PS Act framework, including the duty to obey lawful and reasonable directions, does not remove the common law privilege against self incrimination.⁹

Key points for agency guidance material

Agency guidance material could include information drawn from this chapter on the following:

an employee's responsibility to uphold the Values and the Code
what constitutes misconduct illustrated by agency specific examples within and outside of the workplace
the relationship between any agency-based codes and the APS Code
the preferred approach to the interaction between managing misconduct and underperformance within the agency
the rights of an employee who is being investigated in relation to a suspected breach of the Code
links to agency material/training on the Code available to employees and links to relevant APS Commission material if relevant (e.g. APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads).¹⁰

3 The Freedom of Information Act 1982 would also apply.

4 The Code applies to:

all APS employees (i.e. ongoing and non-ongoing employees and heads of overseas missions). It does not apply to locally engaged employees in overseas missions. (section 7, section 13, section 39, section 74 of the PS Act)
all agency heads, including secretaries of departments, heads of executive agencies and heads of statutory agencies (section 14(1) of the PS Act)
certain statutory office holders (sections 14(2) and (3) of the PS Act and Regulation 2.2).

5 <http://www.apsc.gov.au/publications04/conditions.htm>

6 Purvis v NSW and HREOC [2003] HCA 62; (2003) 202 ALR 133.

7 See for example Cunningham v ABS, Full Bench Decision, PR963720, 10 October 2005 and AGS Legal Briefing No. 80, Misconduct in the Australian Public Service, 24 October 2006.

8 Baker v Commissioner AFP (2000) 104 FCR 359; Elliot v APRA [2004] FCA 586; Sullivan v Secretary, Defence [2005] FCA 786. See also discussion in AGS Legal Briefing No. 80.

9 Legal Briefing No 80, Misconduct in the Australian Public Service, 24 October 2006.

10 <http://www.apsc.gov.au/values/conductguidelines.htm>

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