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Appendix 10 - Sanction decision-making checklist

Matters for consideration when making a decision about imposing a sanction following a determination that an employee has breached the Code

Preliminary considerations

□  Do you have the power to make the sanction decision?

Have you been delegated the role of sanction decision-maker and relevant powers by the head of the agency consistent with your agency's policies and s78 of the Public Service Act? Have you been delegated powers to impose the sanction e.g. transfer at level, reduction in classification or termination of employment? See Sanction Delegate in Part II, Section 7.4 of this guide.

□  Have you declared any potential conflicts of interest that might arise from or in making a sanction decision?

□  Are you satisfied that you will be able to bring an independent and unbiased mind to this inquiry and that a reasonable bystander would agree?

□  Have you read your agency's s15(3) procedures and other guidance material? Factors to be considered in determining the sanction in Part II, Section 7.4 of this guide is also relevant

□  Are you aware of the sanctions available under s15(1) of the Public Service Act?

□  If you have any concerns that the determination of breach of the Code was not made in accordance with legal requirements, such as your agency's s15(3) procedures, have you raised this with the relevant person within your agency? See The determination and sanctionPart II, Section 7 of this guide for more information. People delegated to impose a sanction are not generally able to remake determinations of breaches of the Code.

Advice to the employee who has breached the Code before making a decision

□  Has the employee who has been found to have breached the Code been advised in writing

  • that a determination has been made that he or she has breached the Code
  • of the particular sanction(s) under consideration
  • of the factors that are under consideration in determining any sanction(s)?

□  Has the employee who has breached the Code been provided with a reasonable opportunity to make a statement in relation to the particular sanction(s) under consideration and the factors relating to it?

Matters for consideration in determining the sanction or sanctions

Further information on the matters for consideration in determining the sanction can be found in Part II, Section 7.5 of this guide.

Before deciding what sanction, if any, to impose, have you

□  considered the nature and seriousness of the breach?

□  considered the degree of relevance of the misconduct to the employee's duties?

□  considered the likely impact on the reputation of the agency and the APS if the misconduct were a matter of public knowledge?

□  considered whether the misconduct was uncharacteristic of the employee or whether there have been other similar findings of a breach of the Code?

□  considered what other action has been taken to try to improve the behaviour of the employee? For example counselling, training or performance management within the last two years.

□  considered any previous sanctions imposed for a similar breaches of the Code, if the employee has previously breached the Code?

□  taken into account any remorse or willingness to take responsibility for the breach, or understanding of the seriousness of the breach, by the employee?

□  taken into account other action that may have already been taken such as suspension from duty with or without remuneration?

□  considered what sanction, if any, is necessary for the employee to understand the gravity of the situation and for you to be confident that they are unlikely to breach the Code again?

□  considered any mitigating or extenuating factors, including any such factors raised by the employee? See Mitigating Factors in Part II, Section 7.4 of this guide.

□  considered any information or guidance from your agency on sanction decisions to ensure consistency where circumstances are essentially similar? See Consistency of sanctions in Part II, Section 7.4 of this guide.

□  considered other sources of information? If there is no information available about other cases from within your agency other sources of information could be your home agency, case studies of the Merit Protection Commissioner's case summaries and the APSC Ethics Advisory Service98, for example, may be able to provide you with information or advice about appropriate matters to consider when determining sanctions.

Preparing a decision record

□  If you have decided to impose a sanction or sanctions, have you made a written record of your decision?

□  Have you complied with any obligation in your agency's s15(3) procedures to provide a statement of reasons for your sanction decision, including such matters as your findings on material questions of fact, a reference to evidence or other material on which those findings are based, and reasons for your decision?99 Reasons for your decisions could include such matters as

  • your consideration of the range of sanctions available
  • your consideration of any mitigating or extenuating circumstances raised by the employee.

□  Does your decision set out clearly your reasoning for your decision so that the employee can understand why you have imposed the relevant sanction(s) and so that your decision may be properly understood in any subsequent review?

Advising the employee who has breached the Code of your decision

□  Have you taken reasonable steps to inform the employee

  • of your decision on the sanction(s) to be imposed, if any, consistent with relevant requirements in your agency's s15(3) procedures, and
  • when the sanction or sanctions will take effect?

□  Have you ensured that the employee has been advised of any right to seek review under s33 of the PS Act, or other review rights, of your decision, noting that seeking a review will not operate to stay the imposition of the sanctions?


Footnotes

98 See www.apsc.gov.au/aps-employment-policy-and-advice/merit/case-summaries and www.apsc.gov.au/aps-employment-policy-and-advice/ethics/ethics for more information

99 The relevant factual findings are those which relate to sanction. You are bound by the findings made by the breach decision-maker as to what conduct was engaged in by the employee and whether this was a breach of the Code.