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Appendix 9 - Making a decision about a breach of the Australian Public Service Code of Conduct checklist

About the checklist90

Preliminary considerations

□  Have you been properly appointed or otherwise tasked by your agency head or authorised person in line with your agency's s15(3) procedures?91

□  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 inquiry and that a reasonable bystander would agree?

□  Have you read your agency's s15(3) procedures and other guidance material?

□  Where relevant, have you familiarised yourself with your agency policy, procedures or guidelines for dealing with fraud?

□  Have you decided how the matter is to be investigated? See Investigative process in Part II, Section 6 of this guide for further information.

  • If an external investigator is being considered, see Appendix 6 Australian Public Service Code of Conduct: Tips and traps in selecting external investigators of this guide
  • When deciding who will investigate the suspected misconduct care needs to be taken not to breach the privacy protections under the Privacy Act 1999or the non-disclosure obligations under the Public Interest Disclosure Act 2013.

□  Is the scope of the investigation clearly defined? See Deciding the Scope of the investigation in Part II, Section 6.2 of this guide for more information. Agency guidance material or agency HR managers may be available for further guidance.

□  If you are being assisted by an investigator, are you appropriately supervising the investigator's conduct of the investigation and appropriately involved in the investigation, noting that the conduct of the investigation and the making of findings of fact and findings about breach of
the Code are your responsibility?92 For example has the investigator been provided guidance on:

  •  what alleged conduct is to be investigated and which element(s) of the Code may have been breached? See Deciding on the Scope of the investigation in Part II, Section 6.2 and Appendix 5 Elements of the Australian Public Service Code of Conductof this guide for more information.
  • the likely witnesses or where other evidence may be available?

Advice to the person suspected of misconduct

□  Have you, in line with your agency's s15(3) procedures, ensured that the person suspected of misconduct has been advised of:

  • the inappropriate actions or behaviours they are suspected of committing? That is, have they been provided with clear advice about the nature of the act, or acts, that they are suspected of having committed?
    • If during the investigation it becomes clear that the actions or behaviours they are suspected of committing changes, the person should be informed of these before a determination is made about breach.
  • the element(s) of the Code they are suspected of breaching?
    • If during the investigation it becomes clear that the element(s) of the Code that the person is suspected of breaching changes93, the person should be informed of these before a determination is made about breach.
  • the sanctions that may be imposed under s15(1) of the PS Act?
  • if you are being assisted in running the inquiry, who will be providing you that assistance?
  • that you will be making the determination?
  • how the process is expected to proceed in accordance with the agency's s15(3) procedures such as providing them with a copy of the agency's guidance material and procedures?

Gathering the evidence and evaluating the facts

□  Before making your final determination have you ensured that the person suspected of misconduct has been provided with a reasonable opportunity to make a statement in relation to the suspected breach?94

□  In particular, has the person suspected of misconduct been given adequate notice of all material of which you are aware and which is credible, relevant and significant to the proposed breach decision?

  • This includes any such material which could assist the person in answering the case against them, even though you do not propose to rely on the material in making particular findings or decisions adverse to the person?

□  Have you only taken into account evidence that is relevant, credible and probative in relation to each material finding of fact?

□  Have you ensured that appropriate witnesses have been questioned and any conflicting witness statements or conflicting evidence verified or otherwise checked?

□  Have you ensured that any explanations, or evidence, provided by the person suspected of misconduct or witnesses have been appropriately tested and given proper weight?

□  Are you satisfied there is no relevant evidence that has not been taken into account and there is enough reliable evidence to be able to draw a reasonable conclusion on the balance of probabilities?95

□  Has the person suspected of misconduct been given a reasonable opportunity to respond to new credible, relevant and significant material which has emerged since a previous notice to the person?

Reviewing the evidence and writing the investigation report

□  Does the investigation report:

  • outline the nature of the suspected misconduct, that is the suspected inappropriate actions or behaviours
  • identify relevant legislation and policy material or guidelines or other agency practices you took into account
  • set out the steps taken to collect evidence and information
  • outline the evidence and present it in a balanced way, that is including evidence both for and against the person, including the accused person's response to the allegations and the person's response to any new or conflicting evidence that was uncovered in the course of the investigation
  • outline the conclusions or findings on material questions of fact made on the available evidence including any inconsistencies in the evidence or issues that remain unclear. These conclusions need to flow logically from the evidence that has been collected and considered.
  • how all the relevant elements of the Code were considered and reasons why the action or behaviour did, or did not, amounted to a breach of the element or elements of the Code?

Preparing a decision record

□  Have you made a written record of your decision?

□  Does the decision record comply with the agency's s15(3) procedures? Any statement of reasons for the breach decision could include:

  • a summary of the evidence you took into account in making your decision and any evidence or established facts that were not taken into account and reasons why you did not consider that evidence relevant
  • your findings of fact on the balance of probabilities about what happened, that is the act or acts suspected of being misconduct
  • your decision as to whether those act or acts amount(s) to misconduct, and, if so, which elements of the Code have been breached and why.

In summary, you need to include any detailed background to the making of your decision so that the person suspected of misconduct can understand your reasoning. Your decision may also be reviewed by the Merit Protection Commissioner, or other external bodies, so it is good practice for your decision
process and the evidence and facts you relied to be clearly identifiable. For further information see Preparing a decision report in Part II, Section 7.2 of this guide.

Advising person suspected of misconduct of the outcome of investigation

□  Have you considered what would be the best way to advise the person suspected of misconduct of your decision?96

□  Where you have determined that there has been a breach of the Code, have you considered what would be the best way for the employee fund to have breached the Code to be given notice of matters relevant to any potential sanction consistent with your agency's s15(3) procedures?

□  Have you notified the person found to have breached the Code of any right to seek review of your determination under s33 of the PS Act, noting that seeking a review will not operate to stay the imposition of the sanction?97

□  If the evidence does not support a decision that there has been a breach of the Code, have you informed the person suspected of misconduct of your conclusion?

Next Steps

  • Where it has been determined that an employee has breached the Code, the next stage is to refer the case to the sanction decision-maker to determine if a sanction or sanctions are to be imposed and/or if other administrative action is to be taken. It may be the responsibility for line managers to determine
    whether administrative action is to be taken.
  • It is appropriate for the employee found to have breached the Code to be informed of the name of the person who has been given the authority to determine any sanction(s) and what the next steps of the process will involve.
  • Where the misconduct came to light through an allegation made by, for example, another employee, that employee can be informed of the outcome of the investigation in accordance with agency guidance material and taking into account the requirements of the Privacy Act 1988 and the Public Interest Disclosure Act 2013.
  • Where it has been determined that an employee has not breached the Code, consideration should be given to whether any remedial action is needed such as training/development, performance management measures or changes to processes and systems, or whether there is a need to address any issues within
    the work environment arising from the initial complaint. For example mediation or openly discussing issues of concern within the workplace.

Footnotes

90 This checklist is designed to assist persons appointed under an agency's s15(3) procedures to make a determination about whether an employee, or former employee, that is the person suspected of misconduct,
has breached the Code. Separate guidance, and a checklist, is available at Appendix 7 concerning initial consideration of suspected misconduct and whether to initiate action under those procedures. This checklist is consistent with the requirements in Chapter 6 of the Australian Public Service Commissioner's Directions 2013
but is subject to any additional requirements under an agency's s15(3) procedures.

91 Under s15(3) of the Public Service Act 1999, each agency head establishes mandatory procedures for investigating suspected misconduct in their agency.

92 This statement about the responsibility of the breach decision-maker is subject to any contrary provisions of the agency's s15(3) procedures

93 For example, if additional elements of the Code are being considered, or if it becomes clear that other, more relevant, elements should be considered instead.

94 Procedural fairness requires the person to be sufficiently advised of the nature of the case against him or her to respond properly to the allegations. See Investigating whether misconduct has occurred
in Part II, Section 6.4 of this guide.

95 The required degree of satisfaction on the balance of probabilities increases in accordance with the seriousness of the matter under consideration. See Standard of Proof in Part II, Section 7.2
of this guide.

96 The employee, or former employee, should usually be informed of the decision. Clause 6.4 of the Australian Public Service Commissioner's Directions 2013requires that the employee must be notified
of the breach decision before any sanction may be imposed. In most cases, this would be expected to be done in person with the employee concerned, providing an opportunity to explain the decision and the consequences of it for the employee. It may be appropriate to allow the employee to have a support
person at the meeting. A meeting of this kind would generally be additional to providing them with a copy of the decision and the report on which it was based.

97 A Senior Executive Service employee has no right of review under s33 and the relevant regulations.