Matters for consideration by the suspension decision-maker and action required to enable the suspension87
□ Have you been delegated the power to suspend the employee consistent with regulation 9.3 of the Public Service Regulations 1999 (PS Regulations) and agency policies?
- If you are not an Australian Public Service (APS) employee, has the delegation been approved by the Australian Public Service Commissioner consistent with regulation 9.3(4) of the PS Regulations?
□ Have you been involved in any related inquiry under the agency's s15(3) procedures?88
□ Have you declared any potential conflicts of interest? See Independent and unbiased decision-maker in Part II, Section 6.1 of this guide.
□ Are you personally satisfied that you will be able to bring an independent and unbiased mind to this matter and that a reasonable bystander would agree?
Deciding whether or not to suspend
□ Do you believe on reasonable grounds that the employee has, or may have, breached the APS Code of Conduct (the Code), and that it is in the public interest, or the agency's interest, to remove the employee from the workplace?
- does the alleged conduct pose a risk to
- the safety of staff, clients or customers
- the integrity of information held by the agency
- Commonwealth resources or public revenue
- the confidence of the public in the administration of the agency or the APS as a whole, especially in the case of more serious suspected misconduct?
- Is there a risk that
- the evidence in relation to the alleged misconduct will be compromised if the employee remains in the workplace
- the alleged misconduct will be repeated?
□ Has re-assignment of duties or alternative management action been considered?
When imposing suspension
□ Have you decided if the suspension will be with or without remuneration?
Generally, suspension without remuneration would be appropriate for serious cases, for example, where a potential appropriate sanction would be termination of employment if a breach of the Code is determined.
□ Have you provided the employee an opportunity to make a statement before the suspension decision is made? 89
□ Where you consider that there is an immediate need for the employee to be removed from the workplace before any suspension decision is made, have you considered the following options:
- inviting the employee to seek leave, and granting the leave in line with your agency's arrangements, for example miscellaneous leave with pay
- providing the employee an opportunity to work from home for a specified period, in accordance with your agency's arrangements and s25 of the PS Act, to prepare a statement before the suspension decision is made?
□ If, before the suspension decision is made, you are satisfied on reasonable grounds that, in the particular circumstances, it would not be appropriate to give the employee an opportunity to comment, have you
- recorded, before the suspension decision is made, your reasons for this, and
- advised the employee accordingly and given the employee an opportunity to make a submission immediately after the suspension decision was made?
□ Have you considered how you will discharge your obligation under regulation 3.10(4) of the PS Regulations to review the suspension at reasonable intervals and advised the employee when you propose to review the suspension?
- A review of the suspension decision may be conducted at the request of the employee if, for example, the employee raises matters relevant to hardship where suspension is without remuneration.
□ Has the employee been advised of what has been decided in respect of work-related events during the suspension such as training courses already booked and entitlement to apply for APS vacancies, and other work-related matters such as access to work premises?
□ Has the employee been advised of his or her review rights under s33 of the PS Act and Part 5 of the Regulations?
Where suspension is without pay
□ Has the employee been given reasonable opportunity to comment on any proposal to suspend without pay, including on any issues of hardship, before any decision is made to suspend without pay?
□ Has the employee been advised about possible access to leave credits?
□ Has the employee been advised about whether he/she may seek outside employment and whether prior approval of the agency is required?
□ If the period of suspension without pay is proposed to be longer than 30 days, are there exceptional circumstances that apply?
□ Are you reviewing the suspension at reasonable intervals?
□ Have you invited the employee to make a submission to those reviews?
Where it is determined that the employee suspended without pay has not breached the Code of Conduct
□ Is salary forgone during suspension to be reinstated or is there a case for not doing so, for example, the employee received earnings from outside employment?
□ Is it appropriate to re-credit any paid recreation leave or long service leave taken during suspension?
Reasons for ending the suspension
□ Has a sanction been imposed on the employee for the relevant breach? See regulation 3.10(6) of the PS Regulations. or
□ Do you no longer believe that the employee has or may have breached the Code? See regulation 3.10(5)(a) of the PS Regulations. or
□ Do you no longer believe that the suspension is in the public interest or in the agency's interest? See regulation 3.10(5)(b) of the PS Regulations.
At the conclusion of the period of suspension
□ Has the appropriate documentation in relation to ceasing suspension been completed and all relevant documents placed on record?
87 See Deciding whether to reassign duties or suspend the employee in Part II, Section 5.8 of this guide.
88 A suspension decision-maker may make necessary inquiries to determine if suspension is appropriate in the circumstances. This may include informing themselves of the results of any preliminary investigations, whether for Public Interest Disclosure Act 2013 or Code purposes. To avoid the perception of bias and avoid any real or apparent conflicts of interest it is good administrative practice for the suspension decision-maker not to be involved in the related investigation under the agency's s15(3) procedures.
89 Regulation 3.10(7) requires an agency head to have regard to procedural fairness when making decisions about suspension unless the agency head is satisfied on reasonable grounds that, in the particular circumstances, it would not be appropriate.