Last updated: 30 Jun 2017
This page is: current
Answers to questions posted on the Integrity: your questions answered page.
Q: If there has been a breach of the Public Service Act or an offense committed under the Act by a staff of a Department. Who do you complain to?
If you believe there has been a breach of the Public Service Act 1999 (the Act) you should report your concerns to that agency in the first instance. Under the Act, the head of each agency is responsible for considering allegations of misconduct within that agency. If your concerns relate to a suspected criminal offence, you may wish to report this to the relevant police agency, most likely the Australian Federal Police.
Q: If the employer or Department appeared to have been biased in its investigation or stall its investigation without any acceptable reasons and you do not believe in the integrity of the Department's investigation in investigating itself. Is there an independent commissioner or ombudsman to raise one's concerns?
People appointed to undertake Code of Conduct inquiries and make sanction decisions are required by law to be independent and unbiased. This does not necessarily mean that they must be people from outside that agency. As our guidance notes:
The test for reasonable apprehension of bias is whether a hypothetical fair-minded person, properly informed of relevant circumstances, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the decision.
Code of Conduct investigations are also required to be conducted as quickly as a proper consideration of the matter allows.
If you have concerns that the people appointed to these roles are biased, you may wish to raise these concerns with the agency head or their delegate(s). If you are concerned about the length of time that matter is taking to be investigated, it may be helpful for you to approach the investigator directly with your concerns.
If you are an APS employee, you may be able to seek internal review of the investigation process (with your agency) under section 33(4) of the Act or review by the Merit Protection Commissioner.
Reviews under section 33 of the Act are limited to reviews of actions 'that relate to an APS employee's employment'. The onus of showing that the review does in fact relate to that APS employee's employment rests with the applicant.
Q: Who has the power to investigate public service staff who breach the Public Service Act if one requires a neutral independent body that is detached from the Department who is alleged to have breached the Public Service Act.
As noted above, in most cases misconduct investigations can only be carried out within an agency by a person, who must be independent and unbiased, appointed by the agency head. If you believe that this standard has not been met, in the first instance you should raise your concerns with the relevant agency. If they choose to, an agency head may select breach decision-makers, and even sanction delegates, from outside the agency. In exceptional cases, an agency head can ask the Public Service Commissioner to inquire into the matter on their behalf.If you continue to have reservations about the integrity of the investigation or its outcome, you may be able to seek review by the Federal Magistrate's Court or the Federal Court under the Administrative Decisions (Judicial Review) Act 1977. This is a matter on which you may care to seek separate legal advice.
Q: If someone has a spent conviction from 9 years ago for a minor offence, does that prevent them applying for employment with the APS?
A: No. A criminal conviction does not prevent a person applying for jobs in the APS, nor does it bar them from being employed in the APS. Of course, the type of conviction, the duties of the role, and issues around sensitive information and security clearances will affect whether a particular person can be employed in a particular position. Each case will turn on its own facts.
Q: Can a supervisor legally read your emails/monitor your account?
While we might think about and talk about the ICT we use at work as being 'our computer' or 'our email', in fact it always belongs to, and is accessible by, our employing agency. The content distributed on the employer's email system is similarly 'owned' by the employer. It's very likely that your agency's ICT policy makes this clear.
That said, many agencies allow their employees to have limited use of email and computer facilities for personal use. However, usage of the employer's email system should come with no expectation of privacy.
Q: One of the APS's values that is repeated often is the need for impartiality. Can you please explain how it is possible for serving APS officers to run for election under the banners of various political parties? Does this not demonstrate their lack of impartiality? While this may be fine for those candidates who are successful (providing they do not later return to the APS), but for those who are unsuccessful, surely their impartiality can now be called into doubt.
A: Thank you for your query relating to APS employees running for public office and impartiality.
One of the APS Values set out in section 10 of the Public Service Act 1999 is:
Impartial: The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.
The scope and application of this Value is defined in the Commissioners' Directions to include:
- Having regard to an individual's duties and responsibilities, upholding the APS Value in subsection 10(5) of the Act requires the following:
- serving the Government of the day with high quality professional support, irrespective of which political party is in power and of personal political beliefs;
- ensuring that the individual's actions do not provide grounds for a reasonable person to conclude that the individual could not serve the Government of the day impartially;
APS employees who are contesting elections may be required to resign their employment in the Australian Public Service, depending on the relevant electoral legislation. Actions that they undertake as candidates are therefore not regulated by the APS Values or the Code of Conduct.
Unsuccessful candidates may apply for re-engagement to the APS following the election (http://www.apsc.gov.au/managing-in-the-aps/recruitment-and-selection/reengagement-candidate). From the time of their re-engagement they are bound by the APS Values and Code of Conduct again and must ensure that their actions 'do not provide grounds for a reasonable person to conclude that the individual could not serve the Government of the day impartially'.
The APS recruits people from across the community with a diversity of political opinions. As public service employees they have responsibilities to ensure that their actions do not damage the reputation or impartiality of the APS or their agency. A failure to maintain this standard may amount to a breach of the Code of Conduct and lead to termination of their employment.
Section 6.4 of Values in Practice deals with participation in political activities and provides further information relating to impartiality or perceptions of conflict of interest.
Q: I have a question relating to a breach of the Code of Conduct. Many years ago I was found to breach the Code of conduct. This was a one off incidence on my part; I was led to believe that this 'breach' would be removed from my records after a period of time. My questions: what is the period of time that a 'breach' stays on my personal record? Given that this breach occurred many years ago, when is it still relevant in my employment? I am suspicious that the breach is still being referred to by some people in my agency and it is being used to restrict me from promotion. I would appreciate being referred to any information that might help me overcome this issue, thank you.
A: Thank you for your question relating to breaches of the APS Code of Conduct.
Use of misconduct information in a selection exercise is a matter for careful judgement. Part 8.4 of our publication Handling Misconduct details the following:
8.4.4 Having a work history that includes a finding of misconduct, or an investigation for suspected misconduct, is not necessarily a relevant factor in deciding whether a candidate is suitable for a job vacancy. If a candidate discloses prior misconduct, or the selection delegate or panel is aware of prior misconduct, a decision on whether the candidate is suitable must be based on an assessment of the work-related qualities of the candidate against the work-related qualities genuinely required for the duties.
It goes on to say:
8.4.6 When considering a previous breach of the Code in the context of a selection process, the following factors may be relevant:
- the nature of the breach
- the sanction imposed
- how long ago the breach occurred
- the nature of the duties being performed at the time
- the duties of the job that is being filled
- whether this was a one-off action or indicative of a pattern of behaviour.
8.4.7 Where information about the past misconduct of a candidate is being taken into account as part of a selection process, the candidate should be advised of the matters being considered and provided with reasonable opportunity to comment before the selection decision is made.
Regardless of the status of your misconduct record, the Code of Conduct requires that you act with honesty and integrity. If you are asked about your misconduct history, you are obliged to declare any breaches of the Code, regardless of whether the misconduct record itself might have been destroyed.
There are a number of factors regarding how the records associated with breaches of the Code might be managed over time. The details of a breach of the Code are personal information, and subject to the requirements of the Privacy Act 1988. The information about your breach should be secured on a misconduct file, separate to your personnel file and accessed only on a 'need to know' basis.
In relation to 'need to know'- the sort of circumstances where this information could be accessed might include if you breached the Code again, so that an appropriate sanction could take into consideration any historical breaches. The information might be relevant in some security assessments. It might also be relevant to job selection exercises.
In relation to disposal of the misconduct file, the Archives Act 1982 stipulates that the minimum period for storing records of a breach finding is 5 years. An agency may have policies that allow for storage of misconduct records for longer than this.
In the circumstances, it might be helpful for you to ask your HR team about whether your misconduct record has been destroyed.
Q: I have been subjected to prolonged mistreated by Managers since claiming compensation. If I lodge a formal complaint and the Manager is investigated, does the investigator have the power to read their emails as I believe this will prove my complaint. Thanks
A: If you feel that you have been mistreated since you lodged a compensation claim, it may be that you can make a report within your agency alleging that one or more of your co-workers has breached the APS Code of Conduct. It may be open to you to make this report as a disclosure under the Public Interest Disclosure Act. You can find more about that scheme at http://www.ombudsman.gov.au/about/making-a-disclosure.
The Code of Conduct requires APS employees to treat each other with respect and courtesy. It also forbids us from the improper use of our positon to cause detriment to another person. This may be relevant to your situation.
If your agency conducts such an inquiry then, subject to any policy within your agency that prevents this, it's quite possible for the investigation to consider emails sent to and from an employee. This happens commonly in conduct investigations, which are often about the misuse of email.
It's important to remember that although we might think about and talk about the ICT we use as being 'our computer' or 'our email', in fact it always belongs to, and is accessible by, our employing agency.
Q: What is the most appropriate response for dealing with a "behavioural concern" between two staff members? I had a conversation with two staff other members that left one feeling that they were not treated with respect of courtesy. I feel things have escalated beyond what they should have, but am unsure of what my rights are. I am feeling pressured and the comments made by my colleague in her complaint have embellished and misrepresented the contents of the conversation. Initially, I was not even allowed to see the contents of the written complaint but expected to explain my version without any explanation of the contents of the complaint. I have had it explained to me that this incident does not constitute a code of conduct so I am left feeling confused about what to do next or why this has become so big. Rather than it have been dealt in an informal manner, it has become a formal matter. My version of events is being dismissed.
A: It appears from your message that:
- you've had a conversation with a colleague about an issue
- that, your colleague lodged a complaint of some kind, arguing that you had failed to treat them with respect and courtesy
- feel that the complaint that they lodged was not a fair and accurate representation of the conversation that you had with them
- employer asked you for your side of the story, but also told you that it was not conducting a Code of Conduct inquiry into the complaint
- feel that this matter was allowed to escalate too far, was dealt with too formally, and your report of the matter wasn't given the right weight.
APS employees have a duty to report misconduct when they see it. If your colleague sincerely felt that you had failed to treat them with respect and courtesy then it was appropriate for them to report that.
Whether someone has failed to demonstrate respect and courtesy requires more than just that an individual employee feels that they haven't been treated properly. The question is not whether that person feels they've been treated without respect and courtesy; rather, it's whether a reasonable observer would think that.
Employers must consider such complaints properly, and the best approach will depend on the circumstances. In some cases, this may require full-blown Code of Conduct inquiries. In others, a lower key approach might be adopted, and the person who is the subject of the complaint asked for their side of the story before any further action is taken. This appears to be what you have described happening in this instance.
It is worth remembering that employees who make false reports as a way of damaging their colleagues are at risk themselves of being found to have breached the Code of Conduct. The Code requires us to act honestly and with integrity in connection with our employment. It appears you may feel that you don't know what the implications of the matter are for you now. If so, you may wish to ask the person who considered the complaint what further action, if any, is being taken, and whether any record of the matter will be kept.
Q: Good morning, where an employee knowingly makes false bullying complaints against a colleague (not a supervisor), could this employee be subject to any kind of penalty under the APS Code of Conduct or fair work legislation?
A: Thank you for your query.
The answer below does not address any possible concerns under the fair work legislation; that is a matter on which you may need to get your own advice. Nor does this reply amount to legal advice.
The short answer to your question about the Code of Conduct is: yes.
The APS Code of Conduct is set out in section 13 of the Public Service Act 1999. An employee who has knowingly made a false statement against a colleague may have breached several elements of the Code of Conduct, for example:
- section 13(1) requires an APS employee to act with honesty and integrity in connection with their employment. The making of a deliberate false statement against a colleague is likely to be inconsistent with this.
- section 13(3) requires an APS employee to treat everyone with respect and courtesy when acting in connection with their employment. It is arguable that making a statement of this kind would not satisfy that test.
- section 13(10) forbids an employee from improperly using their 'duties, status, power or authority' to cause, or seek to cause, detriment to any other person. An APS employee knowingly making a false statement against the interests of a colleague may trigger this element.
- section 13(11) requires an employee to uphold the APS Values at all times. This includes obligations to:
- act in a way that models the highest standard of ethical behaviour
- deal with all people honestly and with integrity
- act in a way that is right and proper.
An employee who is found to have breached the Code of Conduct may be the subject of a sanction under section 15(1) of the Act.
Having said that, our guidance also observes that:
Not all suspected misconduct needs to be dealt with [by investigation]. Other approaches such as performance management, counselling, or alternative dispute resolution, such as mediation, may be the most effective way to address behaviour that is minor misconduct.
What is the best course of action to take will be a matter of careful judgement by the employing agency in each case.
If you are concerned that an employee in your agency may have knowingly made a false statement, I recommend that you discuss that concern with a senior member of your agency' human resources area to consider what your next steps might be.
Q. I have a team member who wants a part time agreement for the next 12 months. They also want to revert to full-time for one fortnight on their birthday to maximise their superannuation entitlements. I am uncomfortable with this. To me this is manipulating a system to maximise a benefit and goes against my ethical values. Your thoughts???
Thank you for your inquiry.
The Public Service Act imposes a series of duties on APS employees.
We must act with integrity, and in a way that models the highest standards of ethical behaviour. We are expected to act in a way that is right and proper, as well as technically and legally correct. We are forbidden from improperly using our employment for personal gain. We are also required to use resources efficiently, effectively, economically and ethically.
What is right and proper will also be affected by the part-time work policy that your agency has in place. Does it allow for arrangements of this kind, with short-term reversions to full-time work? Or does it establish a set of criteria that will determine whether part-time work is granted and the reason for it. If so, would a reversion be consistent with that framework? It may be helpful for you to get advice from your agency's human resources area about this issue.
In general terms, the concern that you have is a reasonable one. Being able to access the flexibility of part—time work can be a win/win for both agencies and employers, but it shouldn't be at the expense of gaming the system or done in a way that compromises the APS Values or exposes your agency to criticism or reputational damage.
Q. My agency is considering ways to reduce unnecessary handling time for misconduct investigations. Part of the long timeframe for completing the investigations is due to having to provide 5 working days to any party to respond/comment, e.g. witness has 5 working days to respond to questions, then the witness' response is provided to the respondent for comment, and the respondent has 5 working days to comment etc. If there are multiple parties involved and there is a need to go back to witnesses for more information after other information comes to light, this can greatly extend the timeframe. I note that the APSC Handling misconduct guide talks about 7 days (or longer for more complex matters). Would there be any reason we can't shorten the response timeframe to say 2 or 3 working days, especially for less complex and prima facie matters? Your assistance would be greatly appreciated.
A: Thank you for your query.
We agree that it's a really good idea to make sure that conduct inquiries are resolved quickly. In fact, the legal requirement is to make the decision 'as quickly as a proper consideration of the matter allows.'
It's great to see that your agency is considering strong steps to support this principle.
The need to complete investigations quickly needs to be balanced against the need to provide the employee being investigated with procedural fairness. Among other things, this means that they are entitled to a reasonable opportunity to respond to adverse information provided to them and to give their side of the argument.
In Handling Misconduct we have reported that it is common practice for agencies to give employees seven days to respond to the case against them. It's a useful rule of thumb. Ultimately, the question will come down to what is reasonable in each case. Sometimes the person will reasonably need longer than that to respond, but sometimes it might be reasonable for them to be given less time. As the publication notes, the question is: what would a reasonable person think 'was a reasonable opportunity given the circumstances.'
So, in some cases, it may be reasonable to shorten the timeframe. It will always depend on the circumstances including the complexity of the matter, their personal capacity to respond, and any policy or procedures that your agency may have in place.
One point that should be stressed is that the requirement to provide this kind of timeframe applies only to the person or people being investigated. It doesn't apply to witnesses. If you take a statement from a witness during an investigation, you don't have the same obligation to provide them with procedural fairness. It's good practice to ask them after the interview to confirm a draft record of that interview, but there is no obligation to give them seven days to do so. You might ask for that feedback within twenty four hours, for example.
Q: How to deal with supervisor who is 'SLAVE DRIVER'? I don't mind challenges at workplace but sometimes my supervisor is get into me. I feel like I am always being monitored. I also sometimes feel intimidated the way she talks to me where people in the office can hear her giving instructions to me. I am not sure if its because of her Russian heritage. I am trying to understand her but I sometimes can't help it to get annoyed and just ignore her. I am temporary employee and I always have this thinking that I have to follow her and it might affect my future employment if I don't follow her. When it comes to tasks, I feel she does not want to give me some work to do because she does not want to mentor me. She is assigning most of the tasks to herself instead of distributing it to me or to others.
A: All APS employees are required to treat each other with respect and courtesy at work
There are a number of ways that an APS employee can address concerns that they are not being dealt with fairly and properly by their manager. Some of these are through formal complaint or dispute resolution processes. But, in most cases, the best, fastest, most robust solutions are achieved in the workplace by having respectful conversations.
Have you raised your concerns with your manager, or with their manager? Is there someone in your human resources area who can give you tailored advice knowing your circumstances and the people involved in the workplace? Is there someone else in the agency that you can talk to who can help you organise a discussion with your manager in a way that you feel comfortable with?
One final thing: getting annoyed with other people happens from time to time. At work, however, it's never wise to ignore anyone, especially someone with whom you have a line management relationship. Ignoring people could also be argued to be disrespectful and discourteous behaviour.
Q: When managing a staff member through underperformance concerns or addressing inappropriate behaviour, some employees will tell anyone who will listen that they are being bullied and harassed by the manager. When employees are advised to report their concerns - they won't. When asked for examples - they are not forthcoming. When managers attempt to discuss the accusations and explain what constitutes bullying or harassment in efforts to stop this behaviour it frequently won't work. Managers can not explain their sides to those listening to the employee and often feel they can take no action to defend their reputations. My question is: In this scenario, what else can/should the manager do to cease this slanderous one sided behaviour?
PS - love this option. Thank you for coming up with this!!
A. Thank you for your query. These circumstances are never easy.
You're right to say that dealing properly with underperformance or inappropriate behaviour is not bullying or harassment if you do it in a reasonable way. Even so, people do sometimes do what you've outlined in your question. Sometimes, for their own reasons, they will tell other staff that they are being bullied.
As the manager, you need to maintain your reputation for protecting confidential information about people in your team. As you've implied, you probably shouldn't just go to the people that the staff member has been talking to and put your side of the matter.
That doesn't mean that you have to do nothing. You could, for example, raise the issue:
- with the employee directly. You might ask them if they have been talking about the matter with their colleagues and, if they have, remind them that they are bound by the Code of Conduct and are obliged to act honestly and with respect and courtesy. This includes acting with respect and courtesy towards you, even if you are not part of those conversations, or
- with the people you think have been approached by your staff member. Let them know that you understand that he or she has been talking to them, and remind them that there are two sides to every story but also that you cannot discuss the details of the matter – no matter how much you might like to - because you are bound to deal with the matter confidentially.
It may also be open to you to direct the employee not to discuss with their colleagues how they are being treated. It might be useful for you to get advice from your own human resources area about this or about any other policies that may be in place in your agency or next steps you should take. It may also be helpful to talk to your agency's privacy contact officer to get a clear sense of the limits on your capacity to speak openly about the issues.
Q: Facebook & freedom of speech - where is the line?
A: Thank you for your query.
There's no simple answer to this question. The question will always be decided on the basis of its own particular set of circumstances. As professional public servants, we are expected to display appropriate judgement even in our private lives.
Having said that, you might consider the following points:
- As the article notes, it's a good idea not to make posts about matters that are related to your work or the work of your agency.
- As a general rule, the more senior your classification the more cautious you should be in making public comments on an issue.
- If you're in doubt about whether you should make a comment, don't. Take some time to think it through. Perhaps it would be useful for you to consult with your manager or other colleagues about how they think it might be seen.
Finally, remember that there's more advice and information available in our publication, APS Values and Code of Conduct in Practice.
Alternatively, you could always call the Ethics Advisory Service (02 6202 3737). We'd be very happy to talk to you about it.