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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 3: Administrative Issues and Quality Assurance

7. Recordkeeping and access to records

The Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988 are relevant to the keeping of written records of misconduct actions—with the latter two Acts also related to access to, and use of, records.

Recordkeeping

The National Archives of Australia Administrative Functions Disposal Authority of February 2000 (Disposal Authority) provides information on the retention of records and sets out minimum periods for which various classes of records relating to counselling and misconduct matters should be retained.

Such records include records documenting:

• matters which form the basis for an investigation of whether there has been a breach of the Code
• formal investigations of alleged breaches of the Code
• reviews of, or litigation about, Code decisions
• the determination and implementation of a sanction.

This Disposal Authority sets out minimum retention periods for each of these types of documents. Full details can be accessed through the National Archives of Australia website: http://www.naa.gov.au/recordkeeping. A summary of the main provisions is included in Appendix 4.

The Disposal Authority was developed through a process of extensive consultation with agencies. It provides a useful benchmark of contemporary APS norms as to the minimum length of time that previous conduct is regarded as still relevant in making later decisions about an employee. However, the decision whether records should be kept for a period longer than the minimum established by the Disposal Authority rests with the agency.

Agencies will need to establish policies that set out how long different records are to be retained in the agency—for example, for cases of suspected serious misconduct where the employee resigns, an agency may decide that the records should not be destroyed. While not all documents need to be kept for the same amount of time, the retention periods set by agencies must be consistent for the same type of document.

Agencies should make policies concerning the retention of documents relating to suspected misconduct and misconduct readily available to all employees.

Recordkeeping requirements

Records relating to misconduct action need to be kept separate from the personal file of the employee concerned. The existence of a separate misconduct file should, however, be made apparent on the personal file (e.g. by cross-reference).

Files of this kind are to be classified 'In Confidence' and should be held in secure storage.

Access for management purposes should be allowed only on a strict need-to-know basis. Decision makers, who either are determining whether the Code has been breached or who are deciding an appropriate sanction, should have access to these records.

The person(s) involved in the investigation and decision-making should be responsible for the maintenance and security of the file records. Material placed on the misconduct file should include:

• all correspondence with the suspect employee, including the letter informing them they are suspected of breaching the Code, the letter that fully outlines the 'case against them', the letter advising them of the final determination, the letter outlining the proposed sanction and the reasons for it and the letter advising them of the sanction and their review rights
• any attachments to the correspondence
• all relevant email correspondence relating to the investigation, decision-making or imposition of a sanction
• all material associated with planning the investigation such as records of telephone calls, letters or emails organising interviews
• copies of any draft material provided to the employee for comment
• the investigation report with all relevant evidence attached including such items as transcripts of evidence
• the employee's response to the correspondence.

Retention and disposal of misconduct records

In determining how long records are to be retained, agencies must take into account that misconduct proceedings are designed to protect the integrity of the APS and to prevent recurrence of any behaviour(s) rather than punish a person for the rest of their working life. Timeframes need to be fair and reasonable and reflect a balance between the needs of the agency, the employee and the public interest.

Agencies should ensure that records are destroyed in accordance with agency procedures. This also means there is a responsibility to ensure that records are destroyed appropriately when employees with a current misconduct record move to other agencies.

Included below are the minimum requirements contained in the Disposal Authority.

Findings of no misconduct

If there has been an investigation into suspected misconduct of an employee and it is decided that the allegations are unfounded, then any records should be destroyed 18 months after the investigation is completed. However, the employee concerned may request that the records be kept for the later of either:

• until the employee reaches the age of 75 or
• 7 years after the last action relating to the suspected misconduct.

The employee may also request that the records be destroyed at a specified time.

If an allegation is made of misconduct but no follow-up investigation is made because it was considered frivolous or vexatious or without substance, all records should be destroyed 18 months after the last action in the file.

Findings of misconduct

If, in the period of five years after a finding of misconduct against an employee is made, there have been no new breaches of the Code:

• the misconduct record of the employee should be destroyed and any cross reference in his or her personnel file should be removed
• the employee concerned should be informed in writing that the misconduct record has been destroyed and that any reference in their personnel file has been removed.

Termination of employment as a result of a breach of the Code remains on the public record.

If an employee who has been found to have breached the Code re-offends within five years, the records of earlier offences should be kept for a further period of five years.

Investigation not finalised

If an employee resigns during the course of an investigation of suspected misconduct, any documents that have been obtained or created up to the date of resignation should be retained on a separate misconduct file, even where the investigation is not complete.

Access to misconduct records

Under the Information Privacy Principles (IPPs) of the Privacy Act 1988, the purpose for which personal information was originally collected is a crucial factor in determining how it can be used and to whom it can be disclosed outside the agency. Agencies should refer to the information on the website of the Office of the Federal Privacy Commissioner: http://www.privacy.gov.au.

Agencies need to think carefully how they frame the purpose of the collection of personal information. The purposes for which they collect information in relation to misconduct and usual practice as to how information might be used or disclosed should be set out in an agency's privacy or human resource management policies. In addition, when collecting information directly from individuals, agencies should make them aware of how it may be used or disclosed in accordance with the IPPs, for example, that information may need to be passed on within the agency or to law enforcement authorities if it is considered that there may be a breach of the Code or the criminal law.

In deciding whether material that formed the basis for a finding of misconduct or that comes to light through an investigation can be used for other purposes, agencies need to consider:

• the IPPs (in particular IPP2, IPP9, IPP10 and IPP11)
• administrative law principles, including the need to have regard only to relevant considerations and the rules of natural justice
• Commonwealth and state or territory spent convictions legislation—in cases where a sanction was imposed for a breach of the criminal law
• the duty of care to other employees under occupational health and safety legislation should an investigation reveal risks to the safety of other employees.

Some directly related purposes or purposes authorised by law where information relating to previous counselling or sanctions for misconduct may be relevant include:

• pre-employment checks with prior APS employers for the purposes of a character clearance under section 22 of the PS Act
• promotion decisions
• protective security assessments
• in assessing an employee's performance where performance management schemes have regard to whether an employee embodies the APS Values and the Code as well as achieves outcomes
• to demonstrate that the employee was investigated but exonerated or that there was insufficient evidence found to take action
• as part of an employee's salary record for the purpose of calculating salary, long service leave and superannuation entitlements
• considering what sanction to impose.

Agency policies should also provide that, regardless of whether misconduct records have been removed from an employee's personal file or not, managers should not have regard to past findings of misconduct once the agency-determined retention period has expired.²⁰

It may be lawful for agencies to provide information on misconduct to other employers or potential employers but the applicant will need to be informed of this and given the opportunity to comment by the employing agency or potential employing agency (refer to the Australian Public Service Commission's Circular No 2007/2: The Privacy Act and employee information concerning Code of Conduct matters).

Before providing any information, agencies should ensure that all recordkeeping procedures have been followed such as destroying a misconduct record when the required period has passed since the last action on the record.

When passing misconduct records to a new agency following the movement of an employee, agencies should ensure that the employing agency is aware of the recordkeeping guidelines that apply to the misconduct record and advise the agency when any material is due to be destroyed. Similarly, if an agency receives files with misconduct records they should ensure that they are aware of the recordkeeping requirements of the other agency generating the records and adhere to them as if they were their agency's recordkeeping procedures.

Considering misconduct in the selection process

The selection process is a key means by which an agency gains relevant information regarding eligibility and suitability from applicants.

As candidates are not bound to identify any problems if not specifically asked, they should be specifically asked for relevant information on their previous work history. While it may not be possible to ensure that all information provided by applicants is accurate, agencies need to be aware of the risks in not checking information provided.²¹

Having a work history that includes a finding that the employee has breached the Code or being investigated for a suspected breach does not automatically exclude that employee from consideration in a selection process. If an applicant discloses prior misconduct or the delegate or panel is aware of prior misconduct, a decision on whether the person is suitable for employment should not be made without assessing the work-related qualities of the applicant against the identified work-related qualities (which includes personal qualities) genuinely required for the duties.

When dealing with a previous breach of the Code, the following factors should be considered:

• the nature of the breach (or suspected breach)
• the sanction imposed
• how long ago the breach or suspected breach occurred
• the nature of the duties being performed at the time
• the duties of the current employment opportunity
• whether this was a one-off action or part of a pattern of behaviour.

If an applicant is involved in a misconduct action that has yet to be finalised, care needs to taken so as to not prejudge the outcome of any investigation while ensuring the work related qualities of the employee are appropriate for the duties to be performed. If, after the assessment of the person's work-related qualities, the person is a preferred applicant, the options available include:

• awaiting the outcome of the investigation (if feasible)
• proceeding with the assignment of duties or movement if the proposed breach is considered minor or the possibility of such a potential breach in the new agency is low
• offering the person a temporary assignment or movement pending the finalisation of the investigation.

Referee reports and misconduct

It is a common practice for APS agencies to ask applicants seeking promotion or movement at level to obtain a referee report from their current supervisor or manager.

The IPPs apply to giving a referee comment regardless of whether there are issues with the employee such as underperformance, poor attendance or misconduct.

Supervisors should avoid any comment in a referee report that is unrelated to the employee's work performance. Any comment that is made must be relevant to the selection criteria.

In determining whether to disclose information on a prior or suspected breach of the Code, factors that must be taken into account include:

• the nature of the breach or suspected breach
• how long ago the breach occurred
• the duties being undertaken at the time and the proposed duties of the new work
• the employee's conduct since the breach.

Where an employee whose conduct is under investigation asks a referee from the agency to provide a report and the investigation may be relevant to the work-related qualities required for the job, the referee could indicate that there have been concerns as yet unresolved where the situation warrants it. To go beyond that could be seen as prejudging the situation, particularly where there is no clear determination of misconduct.

Where an investigation has concluded that the employee did not breach the Code, it would be inappropriate for the referee to make any reference to the investigation, unless the investigation resulted in some findings relating to matters of performance or attitude which, although not amounting to misconduct, may nevertheless reflect on the employee's suitability for the employment opportunity in question.

If a breach of the Code has been found to have occurred, and where the breach is relevant, the referee may include an outline of the circumstances surrounding the breach and comment on the relevance of the matter to the position.

Whether the investigation is in progress or has been concluded, an employee's conduct, or misconduct, record is relevant only to the extent that the circumstances have a bearing on the duties and the qualities required for the position for which the reference is being sought.

In all cases, the weight to be given to records of determined misconduct will diminish over time.

Key points for agency guidance material

Agency guidance material should include information, some of which can be drawn from this chapter, on the following:

• agency recordkeeping procedures and appropriate contact points within the agency
• the agency's policies on the retention and disposal and associated records policies including clear delineation of roles and responsibilities of misconduct
• guidance on consideration of misconduct records for selection committees. Such guidance may more appropriately be placed in the agency's recruitment and selection procedures—for example, including a requirement, as part of the pre-engagement or movement checking process, for prospective employees to declare any relevant misconduct matters.

Where an APS agency is considering employing a current or former employee of another APS agency, it could seek the (prospective) employee's consent, as part of the pre-engagement or movement checking process, to the agency seeking information about suspected or determined misconduct and Code of Conduct processes from, and disclosure by, the person's current or former agency.

Agencies should consider advising in applicant information packs that this information may be requested if there are concerns raised about the applicant's conduct from information provided during the selection process.

8. Review of actions

Non-SES employees who have been found to have breached the Code and who wish to challenge either the determination that a breach has occurred or the sanction imposed (except in the case of termination of employment), may lodge an application for a review of actions under Division 5.3 of the Regulations (reproduced in Appendix 1). A decision to suspend an employee can also be the subject of review.

A decision to temporarily re-assign the employee's duties would be subject to review only where the temporary reassignment was made under section 25 of the PS Act (i.e. not imposed as a sanction under section 15) and involved any of the circumstances provided for in Schedule 1 of the Regulations.²²

An application for review of a determination that an employee has breached the Code, or of a sanction imposed for a breach of the Code, must be made to the Merit Protection Commissioner (regulation 5.24(2)). Applications for the review of decisions relating to suspension will generally be made in the first instance to the agency head (regulation 5.24(1)). The making of an application for review does not operate to stay the action (regulation 5.36).

While there is no strict time limit applying to the lodgement of a request for a review of action (relating to a determination that the Code has been breached or consequent sanction imposed), the Merit Protection Commissioner is entitled to regard actions that are more than 12 months as non-reviewable (regulation 5.23(3)(a)).

An employee who has been dismissed is not able to request a review of a decision to terminate the employment but may have the right under the unfair dismissal provisions of the Workplace Relations Act 1996 to apply to the AIRC for a remedy.

The Commission can provide information to agencies and individuals about the review of actions process. However, the Commission cannot give advice on whether an application for review should be lodged in a particular case or particular circumstances. Further information can be obtained from the nearest Commission office or the Commission website.

The review process

An application must be lodged directly with the Merit Protection Commissioner if:

• the application is for review of a finding of a breach of the Code
• the application is for review of a sanction, other than termination, imposed for breach of the Code.

In other cases, the initial application should be lodged with the agency head or their delegate. The Merit Protection Commissioner is not authorised to investigate applications for suspension which have not first been investigated by an agency unless:

• the relevant agency head was personally or directly involved in the action under review
• the employee believes that it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the application
• the employee believes they are being victimised or harassed for having made a previous application for review of another action.

The request for a review to the Merit Protection Commissioner must be in writing and should state why the review is being sought.

Lodging an application for review does not operate to stay the action for which the review is sought. Once lodged, the application can be withdrawn at any time.

In general terms, any review that is conducted will address the following issues:

• whether the agency's Code procedures comply with the Directions
• whether those procedures were substantially complied with by the agency in the course of determining whether there was a breach of the Code
• on the evidence available, what act or acts were committed by the relevant employee
• did they amount to a breach of the Code
• if yes, was the sanction appropriate in all the circumstances?

When a review is completed, the Merit Protection Commissioner makes a report to the agency head and, if the Merit Protection Commissioner is satisfied that the relevant action was in some way unreasonable, the Merit Protection Commissioner may recommend that the agency:

• reconsider or change any relevant decision
• change its rules or procedures
• take some other appropriate action.

If a recommendation is not accepted, the Merit Protection Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.

The applicant will be given a copy of the Merit Protection Commissioner's report to the agency head. While there is no further right of review under the PS Act or the Regulations, the affected employee could seek judicial review under the general law or the Administrative Decisions (Judicial Review) Act 1977.

Key points for agency guidance material

While it is not a PS Act requirement to notify employees of their review rights, it would be good practice to include some information in agency guidance material. The guidance material could also provide links to the advice on the Commission's website www.apsc.gov.au. This site contains advice provided by the Merit Protection Commissioner and contacts for the Commission's regional offices.

9. Quality assurance and streamlining the process

The earlier chapters of this good practice guide have presented information on good practice in relation to the processes surrounding the reporting and management of misconduct.

This chapter outlines a number of mechanisms agencies can employ to ensure that the processes of handling misconduct are appropriate and provides advice as to where the process for handling misconduct can be streamlined to ensure that processes avoid unnecessary delay. A number of common pitfalls are also identified to alert agencies to potential problem areas.

Quality assurance

Agencies should consider implementing the following key quality assurance mechanisms in the process for handling misconduct:

• having several options available for employees to report suspected misconduct
• providing detailed guidance to the managers making the important initial decision of whether the suspected misconduct is a minor matter, or a more serious one, to ensure fairness and consistency in the treatment of suspected misconduct
• ensuring that the decision maker who determines whether a breach has occurred has the necessary skills, experience and resources including knowledge of the investigation process
• having a final checking process so that the decision maker is able ensure that the required processes and paperwork associated with the investigation and determination are complete prior to the final determination being made
• considering whether a separate person should be delegated the power to determine the appropriate sanction
• limiting the number of people in the agency with the delegation to determine a sanction to only a few people
• making available detailed, clear guidance material to all employees about the reporting and management of suspected misconduct.

There are a range of other quality assurance mechanisms that can be advisable for agencies to use as part of their governance procedures.

• Conduct periodic training focussing on the relevance of the Code to employees' day- to-day work including the use of realistic scenarios directly relevant to the work of the agency. This training should also include information on the options for reporting misconduct within the agency.
• Regularly review agency written guidance material on reporting and dealing with misconduct to ensure it is kept up to date, including contact details of relevant people
• Make judicious use of case studies based on situations that have occurred in the agency to assist in educating employees about how different types of misconduct are dealt with, and what sanction can be expected in relation to different types of misconduct. Case studies should not include any information that could identify the individuals involved.
  The publicising of recent cases can have significant deterrent effects, but their use should be approached with caution given the requirements of the Privacy Act 1988. It is important to de-identify cases as much as possible but it is likely that there would be a lower risk that such use/disclosure of personal information would be contrary to the Information Privacy Principles (IPPs) in the Privacy Act 1988 if the affected employee has been made aware that the information may be used or disclosed in line with the disclosure provisions in IPP2 both in general information to all employees and at the time of the investigation. An alternative approach suggested by the Office of the Federal Privacy Commissioner is that in compiling case studies for training or educative purposes amalgamated scenarios or 'dummy' facts could be used. Reported AIRC cases examining termination of employment decisions are public documents and can be used freely in any educative material.
• It is important to note that withholding a person's name may not be sufficient to protect that person's identity. Personal information can include any information or opinion from which a person's identity is apparent or may be 'reasonably ascertained'.
  For example, in a small agency or in a rural or regional area, information about an employee's work area or location or even the type of complaint may be sufficient to identify that person. This should be taken into account when considering whether and what information to release to a third party.
• Integrate a requirement, tailored to be appropriate to different responsibilities at different levels, to demonstrate a knowledge and commitment to the Values and the Code into an agency's performance management system.
• Include questions, in a periodic staff survey, to establish the level of employee knowledge on how to report misconduct, their confidence in being protected from victimisation and discrimination if they report misconduct, whether or not they have observed serious misconduct in the last 12 months, of the Code generally, and their views on whether their colleagues and managers behave in accordance with the Code. If an agency would like assistance with the formulation of questions please contact the Director of the State of the Service team on (02) 6202 3575 or StateoftheService@apsc.gov.au.
• Establish a centralised function within the agency that collects data and monitors progress of misconduct cases. This would include the establishment of a data base of cases including sanctions to assist in ensuring consistency of handling cases and in sanction setting. This function would also act as a quality control mechanism (e.g. checking on timeliness of cases) and be able to provide data to senior management on the number and types of misconduct cases for strategic monitoring purposes, the numbers of reviews sought and the outcomes of any such reviews.
• Ensure regular reports to the agency executive or senior management team on important issues such as any obvious trends, or any systemic issues arising or recommendations for action.
• Periodically conduct a file audit of a sample of misconduct files to evaluate if correct procedures and recordkeeping requirements are being followed.

Avoiding unnecessary delay

Each agency head is required to establish procedures to investigate and determine suspected misconduct. Those procedures must, at a minimum, be consistent with the Public Service Commissioner's Directions. These minimum procedures may be quite brief, and essentially concerned only with the requirement, before any determination is made, to provide the employee with:

• full details of the suspected breach of the Code
• a reasonable opportunity to make a statement in relation to the suspected breach.

The Directions stipulate only that 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. Ensuring the timeliness of misconduct action is important for a number of reasons. Delays not only affect the agency and the employee, but can also be a factor considered in external review. If the case goes to review after an excessively lengthy process, particularly where a high impact sanction has been imposed (e.g. termination or a reduction in classification), generally it will be a factor that will go against the agency's position unless there are good reasons for the delay.

Understanding the steps in the process for handling misconduct

There are a number of ways agencies can minimise the time taken in handling misconduct.

Pre-investigation stage (see Chapter 4)

At this stage of a process a manager has become aware that an employee may have breached the Code and must consider what action, if any, to take. There are a number of issues influencing timing that should be considered.

Formal or informal?

• In many cases, particularly those which are less serious and where the suspected behaviour of the employee is unintentional or atypical, it may be more effective for the manager to deal directly and informally with the employee about their conduct.

Authorisation

• Where a decision is taken to move to a formal investigation into the matter, that decision should be put into operation promptly and a decision maker authorised under the agency's procedures as soon as possible. Agencies may find it useful to maintain a pool of employees who have experience or relevant training in conducting investigations of this kind, and are familiar with the administrative law principles that underpin them.
• Often the person authorised to make a determination that an employee has breached the Code is a relatively senior employee. Where the employee authorised to make the determination concerning suspected misconduct is also expected to manage their normal workload during the course of the investigation, it is often useful to provide that person with assistance to conduct the basic evidence and information gathering, interview witnesses, draft correspondence, and even draft the final report for the decision maker. Guidance material can make clear that this is an acceptable approach.

Notification

• An employee is entitled to be told of the details of the suspected breach of the Code before the determination is made. However, they do not have to be advised of this by the person authorised to make the determination. An agency could advise an employee that they are being investigated and set out the basis for that (e.g. element(s) of the Code suspected of being breached, a description of the suspected behaviour, evidence available at the time) at the same time that they advise the employee of the identity of the person authorised to make the determination.

Suspension

Agencies can elect to have any decision about suspension made by a person other than the person authorised to determine whether there has been a breach of the Code. Giving this responsibility to another employee will:

• allow the person conducting the investigation to focus clearly on the question of whether the employee has breached the Code
• reduce the concerns of the employee about possible prejudgement
• allow the agency to develop a core of experience dealing with the special concerns raised by questions of whether an employee should be suspended.

Public Service Regulations 3.10(4) and (5) requires that the person exercising the suspension delegation retains contact with the Code investigation to ensure that they can properly review the decision to suspend the employee, or to revoke the suspension in the event that

• a determination is made that the employee did not breach the Code
• a sanction is imposed on the employee in relation to a relevant determination that the employee breached the Code.

Investigation stage (see Chapter 5)

Investigations into suspected breaches of the Code are fundamentally concerned with gathering material relevant to the question being determined. A number of aspects of this process can affect timeliness.

Procedural fairness

From time to time some concern is expressed that misconduct investigations are unduly delayed by the need to comply with procedural fairness. In particular, the requirement to provide the employee with an opportunity to put their case, and who exactly should be given the opportunity to comment, are advanced as the reasons for delay in some cases.

However, it is important to note that:

• procedural fairness will not always require that the material be put in writing. In many cases, for example, it can be put to the employee at an interview and discussed at that time
• nor will it always require that the employee be given an extended period of time to consider the material, or that the employee should be allowed to decide the timetable for providing comment.

The rule requires that the employee be given reasonable opportunity, not a perfect opportunity. What will amount to a reasonable opportunity will vary according to the circumstances, but it is not what the employee under investigation believes is a reasonable opportunity. Rather, this is determined by an objective standard; that is, what a reasonable person would believe was a reasonable opportunity given the circumstances.

The person making the determination should also bear in mind that procedural fairness is not owed to everyone involved in an investigation. The obligation arises only in relation to those people for whom the decision might affect a right or interest. Usually this will be confined to the subject employee rather than, for example, witnesses questioned in the course of an investigation.

While there is an obligation to provide a reasonable opportunity to comment, the guiding principle is that this needs to be balanced against the seriousness of the suspected conduct and the other circumstances that apply. It is suggested that, in most cases, no more than seven days would need to be allowed as the period in which to provide such comments.

Statements

One of the most common forms of information gathering in any investigation is the use of interviews, whether in relation to the suspect employee, a complainant, or witnesses. It is good practice to ensure, where possible, that the record of such interviews is complete and agreed with by the interviewee.

Usually this agreement will be recorded by the interviewee signing the record in some form to indicate that they have read and agreed with it or by an exchange of correspondence(perhaps by email). If a person is provided with material in draft for comment and a reasonable timeframe for response beyond which the material will be regarded as final, it may be regarded as final and further correspondence need not be entered into.

Where the interviewee disputes some matters in the draft record, it is not always necessary to reach agreement. Where, for example:

• agreement appears to be unlikely
• agreement would take an unwarranted period of time to achieve
• the matter concerned is of limited relevance to the issue being investigated it is open to the person conducting the investigation to place their version of the interview on the record and add a statement (often provided by the interviewee) to that record, noting the areas of disagreement.

Privacy requirements/obligations

Misconduct investigations typically gather information from employees and other people involved in a matter.

Information that tends to establish that a suspect employee has, or may have, breached the APS Code of Conduct would be regarded as personal information.

Personal information relating to a misconduct investigation must be handled within the boundaries set by the Privacy Act 1988 and the PS Act. Within the context of obligations of APS agencies under the Privacy Act 1988, personal information applies only to individuals and the content must be about that individual.

The collection, storage, use and disclosure of information of this kind is regulated by the Information Privacy Principles (IPPS) under section 14 of the Privacy Act 1988. It may be useful for agencies to develop standard approaches in their guidance material. For example:

• It is good practice for all APS agencies to put employees on notice, using a valid IPP 2 notice, which makes employees aware upon commencing employment with the agency as to the potential use and disclosure of Code of Conduct information.
• At the beginning of an investigation about a complaint, agencies should (among other things) ensure that the employee who is the subject of an investigation is familiar with the agency's policy in regard to complaint handling and answer any questions the employee may have at this time about the policy and the complaint under investigation. For example, IPP 2 notices should be as specific as is reasonably possible to ensure that employees are aware to whom their personal information may be disclosed.
  Agencies should advise the employee being investigated, in writing, that a complaint investigation is underway, what the complaint is about and that personal information about them may be disclosed to others, where necessary and appropriate.
  Where an investigation has been completed and part of the recommendation is for the employee's personal information to be released to another person, body or agency (including the complainant), the individual concerned should be advised and provided with an opportunity to respond to the proposed release of their personal information prior to release. In other words, the principles of natural justice should be applied. A reasonable timeframe, understood by both parties, should be allowed for this response and should be sufficient to allow, for example, the employee to seek advice as necessary. Records should be kept of any decisions to disclose personal information about an employee to another person, body or agency.
• When a person conducting an investigation is interviewing a witness they might use a form of words such as:

  This is an investigation being carried out under procedures established by the agency head under section 15(3) of the Public Service Act for the purpose of determining whether another employee has breached the APS Code of Conduct. A record of this meeting will be kept and may be released in whole or in part for the purposes of making that determination. Do you consent to the release of that information? If not, do you understand that it may be released where necessary in any event?

These words could then also be written into the record of the interview.

Sample clauses on disclosing information for inclusion in agency code of conduct procedures are at Appendix 6.

The circumstances in which personal information gathered in the course of a misconduct investigation may need to be used and disclosed are as follows:

Providing information to a complainant about the outcome of a Code of Conduct investigation

Where a complainant has raised issues about an APS employee's actions or behaviour, or the processes, actions or conduct of an agency, information about the outcome of an investigation may need to be provided to the complainant. It should be possible in most circumstances to give a complainant adequate information about the way their complaint has been handled without disclosing personal information about an employee.

In this situation, there is a further requirement to achieve an appropriate balance between the needs of the employee, the agency and the complainant in relation to the use and disclosure of personal information. Agency heads (or their delegates) should exercise judgement on a case by case basis when considering what personal information about an employee should be released to the complainant.

There are a number of factors to consider before releasing personal information.The primary consideration for agencies should be that disclosure of personal information under IPP 11 regarding misconduct is managed in such a way that an employee's identity is not revealed unless it is necessary, appropriate and reasonable to do so. This is particularly important where the complainant is employed in the same agency.

A sample letter advising complainants on the outcome of a Code of Conduct investigation is at Appendix 7.

For further information on the circumstances in which an agency can lawfully disclose personal information about an employee to a complainant please refer to the Commission's Circular No 2008/3: Providing information on Code of Conduct investigation outcomes to complainants. If an agency is in doubt as to whether it can lawfully disclose personal information about an employee to a complainant in a particular case, it should seek legal advice.

Sharing information between APS agencies about Code of Conduct matters for employment related purposes

This could include where an APS agency is considering employing a current, or former, employee from another APS agency, where that employee:

• has been subject to a finalised Code of Conduct investigation
• has been notified that they are under investigation for an alleged or suspected breach of the APS Code
• is the subject of an allegation of a breach of the APS Code that has not been addressed.

The purposes for sharing information between APS agencies about Code of Conduct matters for employment related purposes includes for selection/recruitment processes and progression of Code of Conduct investigations.

This can involve:

• the 'use' of information for another purpose other than which it was collected (IPP 10.1(a))
• the 'use' of information for a purpose directly related to the purpose for which the information was obtained (IPP 10.1(e))
• 'disclosure' of information from one APS agency to another APS agency (IPP 11.1(b)).

The person the information is about must be informed about and freely consent to the use and/or disclosure of their personal information. A 'consent' from a person who has no other option but to consent is not adequate for exceptions under IPPs 10.1(a) or 11.1(b).

For further information on the steps agencies can take to lawfully ensure that employees are reasonably likely to be aware of the circumstances in which Code of Conduct information may be disclosed to another APS agency refer to the Commission's Circular No 2007/2: The Privacy Act and employee information concerning Code of Conduct matters.

If an agency is in doubt as to whether it can lawfully release information to another agency in a particular case, it should seek legal advice. If an agency is in doubt as to whether it can lawfully collect and use information in a particular case, it should seek legal advice.

Burden of proof

As a civil administrative matter, the decision that an employee has breached the Code is made on the 'balance of probabilities'—that is on the basis of what is most likely to have happened.

It will always be a matter of judgement for the decision maker about the extent to which they follow up on every line of inquiry that arises during the investigation, or only those which are of substance and which, if established, will have a direct impact on the decision to be made. In other words, if the available evidence strongly suggests a decision one way or the other, it may not be necessary to follow up on a particular question if the resolution of that question will not 'tip the balance'.

Avoiding common pitfalls

There are a number of common pitfalls that are often faced by employees conducting a misconduct action.

Agencies may wish to highlight these in any agency guidance along with any other pitfalls experienced within the agency.

Things to avoid

Employees involved in a misconduct action should avoid the following:

• confusing the roles of the decision maker who determines whether a breach has occurred, and the investigator—the decision maker retains overall responsibility for the processes associated with making the determination (see Chapters 5 and 6)
• not giving the accused employee and/or witnesses the opportunity to respond to new and/or conflicting evidence during the investigative process (see Chapter 5)
• approaching the investigation with the attitude of 'proving the allegation' rather than a disinterested attitude of finding out all the relevant facts and circumstances (i.e. starting with a presumption of guilt)
• inadequate investigation reports that are not clearly structured and do not explicitly evaluate and weigh-up the available evidence including conflicting evidence
• agency employees making comments about the case that presume the accused employee's guilt prior to a determination being made—this type of comment, made particularly by more senior employees or by a decision maker, can result in the decision being overturned on review, because of perceptions of bias
• not fulfilling all procedural fairness requirements, in particular, not giving the employee the opportunity to respond to the full case against them prior to the determination being made or not giving them the opportunity to respond to the proposed sanction
• not considering information on recent sanctions for broadly similar types of misconduct across the agency to ensure greater consistency in sanction setting
• not clearly setting out the reasons for preferring a particular sanction
• poor recordkeeping practices—if key documents and correspondence are missing from the file this can significantly weaken the agency's position if the case goes to review
• undue delay.

Key points for agency guidance material

Agency guidance material could include information, some of which can be drawn from this chapter, on the following:

• references to the agency's quality assurance mechanisms, including appropriate feedback processes that can feed into the regular evaluation of the process for handling misconduct
• advice to employees on how delays can be minimised within the agency's procedures
• a checklist of common pitfalls identified within the agency.

Agencies may also wish to consider developing templates, checklists and sample letters in accordance with agency misconduct procedures and other related policies. These will assist investigators and decision makers to more quickly address the administrative and procedural fairness issues and provide a consistent approach across the agency.

 

20 Agencies should note the decision of the AIRC in Walsh v Australian Taxation Office [PR951810], Sydney, 4 March 2005.

21 Agencies should refer to the Commission publications Ongoing Employment—Recruitment and Selection and Conditions of Engagement for advice on pre-employment misconduct and imposing conditions of engagement.

22 Clause 10 of Schedule 1 of the Regulations provides that:

An action that determines, under section 25 of the Act, duties of an APS employee, or the place or places where they are to be performed, unless the action involves:

1. a reduction in classification
2. a relocation to another place
3. a promotion that meets the following criteria:
   1. the affected employee was an applicant for the promotion
   2. the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules
   3. there were serious defects in the selection process
4. the assignment to an employee of duties that the employee could not reasonably be expected to perform.

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