Note that this page is under review. It has not yet been updated to reflect changes to the Public Service Act 1999 and Public Service Regulations 1999, or contained in the Australian Public Service Commissioner's Directions 2013, or in relevant legislation that impacts upon this guideance such as the Privacy Act 1988. Agencies may continue to use the guidance for reference, but should be aware that it may not reflect current legislative requirements.
Agency guidance material—Checklist
Overview of a process for handling misconduct (Chapter 2)
- an employee's responsibility to uphold the Values and the Code
- what constitutes misconduct illustrated by agency specific examples within and outside of the workplace
- the relationship between any agency-based codes and the APS Code the preferred approach to the interaction between managing misconduct and underperformance within the agency
- the rights of an employee who is being investigated in relation to a suspected breach of the Code.
- links to agency material/training on the Code available to employees and links to Commission material if relevant (e.g. APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads).
Reporting suspected misconduct (Chapter 3)
- encouragement of employees to report suspected misconduct as part of their duty as an APS employee
- the different options available to employees to report misconduct
- the protections available to employees who report misconduct
- how to treat or collect any evidence prior to reporting. It could include advice that employees:
- make notes on what they have seen or heard
- provide written records on any action the employee has taken
- keep any relevant documents and not make any written annotations on them
- report the matter but otherwise keep the matter confidential.
Considering a report of suspected misconduct (Chapter 4)
- identifying who is responsible for deciding whether suspected misconduct will be handled through the misconduct procedures or alternate procedures
- providing examples of suspected misconduct that the agency considers should usually be handled under the misconduct procedures
- identifying alternative methods of handling suspected misconduct
- determining when a misconduct action should commence once a report of suspected misconduct has been received
- the recordkeeping requirements for employee discussions/counselling sessions and what to do if the employee's conduct does not improve or deteriorates further
- circumstances in which an employee may be suspended, with or without pay, or assigned other duties
- procedures for managing suspension and assignment of duties that identify who is responsible for decision making.
Investigative process (Chapter 5)
- outline agency procedures for appointment, alert the decision maker (and investigator if roles are separated) to the need to be vigilant about circumstances that might give rise to claims of bias, and what to do if such claims are made
- direct the decision maker (and investigator if roles are separated) to comply with the agency's section 15(3) procedures
- describe agency procedures for conducting an investigation including advice on issues such as preparing records of discussion and taking witness statements
- provide advice on the different approaches to determining the scope of an investigation
- stress the importance of complying with the requirements of procedural fairness and other administrative law principles
- note the legislative requirement (generally reiterated in the agency section 15(3) procedures) that the investigation should be carried out with as little formality and as much expedition as a proper consideration of the matter allows
- emphasise the need for planning the investigation prior to commencement and, subsequently, in taking time to review the process to ensure all available relevant evidence has been collected
- note the important principles in weighing up the evidence and the key features of the written report
- cover the handling of situations where evidence does not support misconduct having occurred
- provide contact points for support and advice.
The determination and sanction (Chapter 6)
- advice on the role of the decision maker
- advice for the decision maker on the breach about preparing a decision record— agencies may wish to consider developing a template
- advice on how to handle a case where an employee moves to another agency
- an explanation of the sanctions that can be used
- the factors to be considered in determining an appropriate sanction
- some agency-specific examples of when particular sanctions may be appropriate
- the importance of consistency references to sources of advice such as data bases, HR personnel
- handling the process of notifying the employee of a proposed sanction.
Recordkeeping and access to records (Chapter 7)
- 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 placed in the agencies recruitment and selection procedures—for example, including a requirement on any personal details form for prospective employees to declare any misconduct procedures.
Review of actions (Chapter 8)
- 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.