Home > Personal behaviour > Reporting suspected breaches

REPORTING SUSPECTED BREACHES OF THE CODE OF CONDUCT

AWARENESS

One of the most common ways in which inappropriate conduct is brought to an agency’s attention is through the reports of employees, either to supervisors or to specialist staff with responsibility for managing conduct-related matters (e.g. HR staff).

It is therefore in the best interests of agencies to put in place and promote policies and practices that educate their employees about the Code of Conduct, explain how they can and should report suspected misconduct when they become aware of it, and assure them that they will not be subject to victimisation or harassment for doing so.

In this year’s employee survey, 83% of employees said that they were familiar with the APS Code of Conduct, and 16% reported that they had heard of the Code but were not fully familiar with its contents. This compares favourably with the outcome for the previous year, in which only 74% of employees said that they were familiar with the Code and 24% said that they had heard of it but were not fully familiar with its contents.

Employees who said that they were familiar with the Code, or had heard of it but were not fully familiar with its contents, were asked to rate their level of familiarity with the Code on a five point scale from very high to very low. There was an increase from 2003 in the percentage of relevant employees who believed that they were highly or very highly familiar with the Code (from 46% to 55%), while the percentage of relevant employees who regarded themselves as only moderately familiar, or had a low or very low level of familiarity, declined over the year.

APS employees who had at least heard of the Code of Conduct reported that they became aware of the Code in a number of ways. Most common were actions that their current agency took to ensure employees are made aware of the Code (73%). Twenty-nine per cent of employees reported that they had personally taken steps to make themselves aware of the Code, and 24% became aware of the Code as a result of APS Commission material (e.g. bookmarks or publications).

Almost all employees surveyed regarded the Code of Conduct as moderately or highly relevant to their daily work, much the same as the 2003 result. The percentage of employees that rated the Code as highly relevant increased marginally from 82% to 84%.¹

The agency survey indicated that all agencies use measures of some kind to make employees aware of the APS Values or the Code of Conduct, but only 62% actively promote their arrangements by conducting on-line training or sessions on how the Values and Code should operate in practice (other than as part of induction/orientation). The corresponding figure for the previous year’s report was 60%. This result might be considered somewhat disappointing given the conclusion in last year’s report that agencies could profitably expend greater effort in actively raising awareness about the application of the Code in their agency. It should also be noted that the APS Commission evaluation of the management of suspected breaches of the Code of Conduct observed a relationship between the level of investment by agencies in awareness raising on the importance of the Values and Code of Conduct and the agency’s performance against a number of indicators relating to staff willingness to report misconduct.

Around two-thirds of employees indicated that they had been made aware by their current agency that they could report a suspected breach of the Code to an authorised person in the agency.

The employee survey also sought information from employees about their level of confidence about whether, if they made a report of a serious suspected breach of the Code of Conduct by different sorts of people, they would not be victimised or discriminated against by people in their agency.²

As shown in Table 6.1 below, between 69% to 77% of employees had a high or moderate level of confidence that they would not be victimised or harassed as a consequence of making a report that they suspected that another person had seriously breached the Code of Conduct.

Table 6.1: Employees’ confidence that they would not be victimised or discriminated against for reporting a suspected serious breach of the Code of Conduct

Source: Employee survey

The level of employee confidence varied considerably between large agencies, suggesting that it is possible to build confidence by appropriate promotion of processes and good management. For example, the proportions of employees in large agencies that reported ‘low’ confidence that they would not be victimised or discriminated against for making a report of a suspected breach of the Code by their ‘supervisor/manager’ was between 11% and 32%.

A degree of circumspection among employees about whether they would report what they considered to be a serious breach may be reflected in the fact that although 11% of the employees surveyed said that they had witnessed a serious breach of the Code by another APS employee during the last year, only half of them said they had reported the suspected breach.

A more detailed examination of employee survey results revealed that there is a strong correlation between the witnessing of a suspected serious breach by another APS employee and employees’ level of confidence that they would not be victimised or discriminated against by people in their agency if they were to report a suspected serious breach of the Code of Conduct. Those employees that reported having witnessed a suspected serious breach of the Code by another APS employee were much more likely to indicate ‘low’ confidence about not being victimised or discriminated against compared to those that had not witnessed a suspected serious breach.

Increasing the confidence that staff have that they will not be victimised for reporting misconduct should be a priority for APS agencies, particularly targeting scenarios where the employee suspected of breaching the Code is a more senior employee.

METHODS OF REPORTING

Agencies indicated that suspected breaches of the Code that were the subject of formal investigations that were finalised during 2003—04 had been brought to their attention in a variety of ways. The two most common were that the conduct was identified by supervisors/managers or by work colleagues (taken together, 56% of all suspected breaches were identified by these means). Complaints from the public or other stakeholders accounted for 17% of all suspected breaches, and agencies indicated that 15% of all suspected breaches were identified through their compliance/monitoring systems (e.g. audit). Two per cent of suspected breaches were identified as a result of a whistleblower report under s. 16 of the PS Act. Ten per cent of investigations arose through other means, for example notification of a suspected breach from a State agency, self-reporting by the relevant employee, reports from the media, and referral by the Australian Federal Police (AFP).

WHISTLEBLOWER REPORTS

In the two most recent agency surveys, APS agencies have indicated that they received very few whistleblower reports under s. 16 of the PS Act. Last year’s State of the Service report indicated that only 20 out of a total of 936 formal investigations into suspected breaches of the Code of Conduct that commenced in 2002—03 in the APS as a whole (or 2.1%) were instigated as a result of a report under the whistleblower provisions. This year’s agency survey results, while not directly comparable, show that a similar small proportion of all employees that were the subject of a finalised formal investigation were investigated as the result of a report made under the whistleblower provisions (25 out of 1083, or 2.3%).

Discussions during the evaluation of the management of suspected breaches of the Code of Conduct indicated that many reports of suspected misconduct from APS employees are not being correctly identified and treated as whistleblower reports. Specifically, the whistleblower arrangements in the PS Act (s. 16) provide that an APS employee may make a report of a suspected breach of the Code of Conduct to an ‘authorised person’. In many agencies it appears that the set of staff who are authorised persons for this purpose is very large and includes, in some agencies, all line managers.

In the light of this finding, it would appear that some agencies may not have been correctly categorising the number of whistleblower complaints that they have received, dealing with them in some other fashion, including under the agency’s Code of Conduct procedures.³

The APS Commission considers that employees who report misconduct orally or otherwise to an ‘authorised person’ are in fact making a whistleblower report under s. 16 and are entitled to the protections and rights under s. 16 and the PS Regulations regardless of whether they identify their disclosure as a whistleblower report.⁴ The Commission acknowledges, however, that it has not issued any guidance or advice on this issue or more generally about the management of the whistleblower scheme since the passage of the PS Act, and that the current framework has caused a significant level of confusion.

The evaluation also found widespread misconceptions surrounding the term ‘whistleblower reports’. Contrary to its meaning in s. 16 of the PS Act (i.e. making a report of a suspected breach of the Code of Conduct to an authorised person), in most employees’ minds it was linked with public exposure of wrong doing and/or leaking to the media, and usually involved alleged misconduct by senior people in an organisation. Accordingly, most employees did not equate reporting misconduct with making a whistleblower report.

These findings have important implications. Firstly, it appears that agencies have designated a wide range of ‘authorised persons’ to receive reports of suspected misconduct but are not treating many of the reports of suspected misconduct, and the employees who make them, in the manner required by Division 2.2 of Part 2 of the PS Regulations and s. 16 of the PS Act that is, as whistleblower reports. This means that:

• the employee may not be made aware of the protection against victimisation and harassment under s. 16
• the requirement that the authorised person or agency head investigate the report (subject to its not being frivolous or vexatious) is not necessarily fulfilled (although this appears to occur in most cases in practice)
• the need for employees who make such a report to be advised about whether or not the agency has decided to conduct a formal misconduct investigation after the initial investigation into their allegations is not necessarily fulfilled
• the employee may not be made aware of the right to have their report of suspected misconduct inquired into by the PS Commissioner or Merit Protection Commissioner where they are not satisfied with the outcome of the investigation of their report in their agency.

Secondly, many agencies rely heavily on their whistleblower procedures to provide written guidance to employees on how to go about reporting suspected misconduct by another APS employee. However, as most employees and managers do not appear to identify reporting misconduct with making a whistleblower report they are unlikely to use these procedures unless different terminology is used or effort is undertaken to clarify current misconceptions.

The Commission is currently considering how these implications are best addressed in the context of s. 16 of the PS Act and the relevant regulations and also from the perspective of encouraging and facilitating the reporting of suspected misconduct by employees. Experience with the operation of the scheme relating to whistleblower reports since 1999 has indicated that the relevant regulations are not as clear as they could be. Further advice on this issue will be addressed in the good practice guide being developed as a result of the evaluation. However, as an interim measure, agencies with a wide range of persons authorised to receive whistleblower reports in their written procedures would be advised to restrict this authorisation to a more limited number of staff who are properly trained in the requirements of the legislation. Agencies may also find it useful to develop guidance material that encourages their staff to use the whistleblower procedures to report matters of genuine public interest.

WHISTLEBLOWER REFERENCES TO THE PUBLIC SERVICE COMMISSIONER OR MERIT PROTECTION COMMISSIONER

Under procedures established by each agency head under the PS Regulations, APS employees can make reports of suspected misconduct directly to the Merit Protection Commissioner or to the PS Commissioner in some circumstances. These reports are also ‘whistleblower reports’. In addition, employees who have made a whistleblower report to their agency head and are not satisfied with how the report has been handled can refer the matter to the Merit Protection Commissioner or the PS Commissioner.

Table 6.2: Whistleblower reports received during 2003—04

Source: Merit Protection Commissioner

During 2003—04, the Merit Protection Commissioner received six whistleblower reports, four more than he received in 2002—03. One of these reports was withdrawn, four were not accepted, and at the time of preparing this report one was still being investigated. Issues raised included management of personnel matters, including leave entitlements and probation, harassment and aspects of recruitment processes.

During the year the PS Commissioner received 12 reports, two less than the number received during 2002—03. Ten of these were from current employees and two were from private citizens. Only four reports met the criteria for investigation by the PS Commissioner. Two reports, from employees in the same agency, contained allegations of abuse of employer powers by an agency head and a senior employee. The third alleged that a supervisor provided false information in relation to performance management and, in not approving a leave application, failed to comply with the law. The fourth report alleged the distribution of inappropriate material via email.

In the first of the finalised cases, while it was found that there were not sufficient grounds to recommend a Code of Conduct inquiry, the Commissioner concluded that there had been lapses in management and suggested the agency also review its conflict of interest arrangements. In the second case, the Commissioner concluded that the agency concerned had taken appropriate action to consider the conduct of employees who had distributed inappropriate material via e-mail, but also commented that it was unfortunate that the agency had not taken earlier and firmer action, both to stop the circulation of the material and to take more seriously the report of it happening.

The other eight disclosures did not meet the criteria for investigation by the PS Commissioner. As the APS whistleblower scheme does not cover reporting by members of the public, in the case of two disclosures from private citizens advice was provided to them on the appropriate ways in which their concerns could be addressed. These cases involved allegations related to the handling of an application for allowances from Centrelink and a visa application. The remaining six disclosures involved allegations of bullying and harassment, misuse of Commonwealth resources, denial of allocation of work, and lack of support for priority work projects. In one case the report related to a person who was no longer employed in the APS and in two others the relevant agency was still considering the allegations. In the final three cases the employees concerned were advised that their reports should in the first instance be lodged with the relevant agency head or were made aware of other, more appropriate, avenues to raise their concerns.

During 2003—04 the PS Commissioner also finalised an inquiry into a report received in the previous year relating to alleged breaches of the Code of Conduct in a selection process. The Commissioner concluded that the decisions in the selection process were justifiable and consistent with the merit principle and that there was insufficient evidence to support the allegations.

1 Employees who were not familiar with the Code of Conduct were provided with a copy to read before answering the question on relevance.

2 In the employee survey, examples of a ‘serious breach’ were said to include fraud, theft, misusing clients’ personal information, sexual harassment and leaking classified documentation.

3 That is, those procedures established by the agency head under s. 15(3) of the PS Act.

4 Of course, notwithstanding the specific protections available under s. 16 of the PS Act, it remains the case that any APS employee who makes a report of a suspected breach of the Code of Conduct should not be harassed or victimised for doing so. Such behaviour would, of itself, amount to a new breach of the Code of Conduct.