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Breaches of the APS Code of Conduct

The Public Service Act includes a statutory Code of Conduct that sets out the behavioural standards expected of APS employees. Section 15(3) of the Act requires agency heads to establish procedures, having due regard to procedural fairness, for determining whether an employee has breached the Code of Conduct and what sanction, if any, is to be imposed if a breach is found.

This section draws primarily on two data sources, the 2013 APS employee census (employee census) and the agency survey. The employee census collected data on employee perceptions of the incidence of serious misconduct5 as well as harassment and bullying.6 It also collected data on the proportion of this suspected misconduct that was reported and for employees who elected not to report, their reasons for not doing so.

The agency survey collected data on the number and nature of agencies' investigations of suspected misconduct over the same period, including the proportion of investigations resulting in a finding that an employee had breached the Code of Conduct and the types of sanctions that were imposed as a result.

In 2012–13, and consistent with previous years, agency survey data indicated the number of employees investigated and found to have breached the Code of Conduct represents only a small proportion of total APS employees (0.2% or 2 in every 1,000 employees).

Reporting suspected serious misconduct

The integrity of the APS and of individual APS agencies relies to a large extent on the willingness of employees to report suspected misconduct. In 2013, 9% of APS employees who responded to the employee census indicated they had witnessed what they perceived to be serious misconduct during the year, compared to 12% of employees in 2012 and 15% in 2011.

In 2013, 59% of employees who indicated they had witnessed suspected serious misconduct chose to report it so action could be taken, a slightly higher proportion than in 2012 (56%). EL and SES employees reported at a higher rate (68%) than did their APS 1–6-level colleagues (56%) and only a small number of employees from each group indicated they did not know how to report (3% and 5% respectively). Most employees who chose not to report gave the reasons shown in Table 3.2.

It is encouraging that both the proportion of employees who state they have witnessed serious misconduct is falling and, when witnessed, they are more prepared to report the behaviour.

Table 3.2 Reasons for not reporting suspected serious misconduct, 2012 and 2013
Reasons for not reporting Employees who did not report for this reason (%)
2012 2013
Source: Employee census
Note: (a) new question in 2013
I did not think any action would be taken 46 39
It could affect my career 33 30
I did not want to upset relationships in the workplace 30 25
The matter was reported by someone else(a) N/A 26

A range of mechanisms are used by employees to report suspected misconduct, for example, by raising concerns with their manager or with a specialist investigative unit in their agency, through agency helplines, or by making a whistleblower report to an authorised person under Section 16 of the Public Service Act. Data collected from agencies indicated most reports of suspected misconduct that led to a finalised investigation in 2012–13 came from agency employees, either a supervisor/manager (28%) or colleague (21%). More than one-quarter of reports of suspected misconduct were identified by risk management strategies, such as audit processes, primarily in large agencies.

In 2012–13, the APS whistleblowing provisions of the Public Service Act were in place.7 Data collected from agencies shows that 55 whistleblowing reports were made in the APS in 2012–13, similar to the 54 reports made in 2011–12. Thirty-five of these were finalised during the year. Of those finalised, only two resulted in a decision to start an investigation into the suspected misconduct under the agency's Section 15(3) procedures. The Commission will monitor and report on the number of Code of Conduct investigations arising from disclosures made under the PID framework once it comes into operation.

Table 3.3 shows that alleged harassment and/or bullying accounted for one-third of all whistleblowing reports in 2012–13. This indicates that many employees regard behaviours that affect them personally, for example bullying and harassment, with the same level of seriousness as they regard behaviours that indicate failures in institutional integrity, such as corruption.

Table 3.3 Whistleblowing reports lodged within agencies, 2011–12 and 2012–13
Subject matter Reports lodged (no.)
2011–12 2012–13
Source: Agency survey
Note: An individual report can be count4ed against more than one subject.
Harassment and bullying 15 25
Conflict of interest 3 9
Improper use of position or status (e.g. abuse of power, exceeding delegations) 8 9
Fraud other than theft (e.g. identity fraud) 2 5
Improper use of resources other than Internet/email (e.g. vehicles) 4 4
Failure to act with respect and courtesy (other than harassment or bullying) during working hours 9 4
Improper use of Internet/email at work or using work resources 4 2
Unauthorised disclosure of information (e.g. leaks) 0 2
Improper access to personal information (e.g. browsing) 6 1
Other 8 7

Levels of investigation

Agency data shows that fewer Code of Conduct investigations were finalised in 2012–13 than in 2011–12. Table 3.4 shows the number of investigations into suspected misconduct and breaches of the Code of Conduct over the past three years.

Table 3.4 Finalised investigations and breaches of the APS Code of Conduct, 2010–11 to 2012–13
Year Finalised investigations Breaches of Code of Conduct found
(no. of employees) (no. of employees) (% of breaches from finalised investigations)
Source: Agency survey
2010–11 796 576 72
2011–12 793 481 61
2012–13 516 385 75

As in previous years, there is variation between agencies in the proportion of employees investigated for suspected misconduct, with five large agencies accounting for most Code of Conduct investigations in the APS.8 This reflects differences in the operational environment of agencies, including risk factors such as the number and dispersion of employees and the nature of contact with clients, as well as internal management practices.

Nature of reported and finalised breaches

Failure to behave in a way that upholds the APS Values and the integrity and good reputation of the APS at all times—Section 13(11)—continues to be the most common alleged breach, a factor in 60% of finalised investigations in 2012–13. Table 3.5 shows the number of employees investigated by agencies for suspected breaches of individual elements of the Code of Conduct and the rate of breach findings in 2011–12 and 2012–13.

Care needs to be exercised in interpreting this data because of the varying practices of agencies. Agency decision makers may find breaches of multiple elements of the Code of Conduct depending upon the suspected misconduct so that the final determination taken is more exhaustive. Alternatively decision makers may choose one or two elements of the Code of Conduct that are most directly relevant to the suspected misconduct.

Table 3.5 Elements of the Code of Conduct found to have been breached in finalised investigations, 2011–12 and 2012–13
Element of the Code of Conduct Employees investigated for this element of the Code (no.) Employees found to have breached this element of the Code (% of those investigated)
2011–12 2012–13 2011–12 2012–13
Source: Agency survey
Note: An individual employee may be counted against more than one element of the Code of Conduct.
At all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS 335 308 81 85
Behave honestly and with integrity in the course of APS employment 261 213 74 77
Comply with any lawful and reasonable direction given by someone in the employee's agency who has the authority to give the direction 299 191 91 88
Act with care and diligence in the course of APS employment 225 177 78 81
When acting in the course of APS employment, treat everyone with respect and courtesy, and without harassment 235 166 66 77
Use Commonwealth resources in a proper manner 216 146 81 90
Disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment 162 134 87 89
Not make improper use of inside information, or the employee's duties, status, power or authority, to gain, or seek to gain, a benefit or advantage for the employee or any other person 89 80 64 63
When acting in the course of APS employment, comply with all applicable Australian laws 91 76 84 58
Not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment 38 29 79 59
While on duty overseas, at all times behave in a way that upholds the good reputation of Australia 5 5 40 20
Comply with any other conduct requirement that is prescribed by the regulations 3 2 33 0
Maintain appropriate confidentiality about dealings that the employee has with any minister or minister's member of staff 1 0 100 0

Table 3.6 shows interpersonal behaviour was a significant factor in the suspected misconduct investigated by agencies in 2012–13, with 187 investigations involving allegations of harassment, bullying and/or discourteous behaviour.

Table 3.6 Types of misconduct in finalised investigations, 2011–12 and 2012–13
Type of misconduct Employees investigated for this type of misconduct (no.) Employees found to have breached the Code (% of those investigated)
2011–12 2012–13 2011–12 2012–13
Source: Agency survey
Note: An individual employee may be counted against more than one type of suspected misconduct.
Improper access to personal information (e.g. browsing) 162 120 75 97
Failure to act with respect and courtesy (other than harassment or bullying) during working hours 171 117 73 72
Improper use of Internet/email at work or using work resources 163 92 82 86
Harassment and/or bullying 118 70 53 61
Conflict of interest 94 66 69 79
Fraud other than theft (e.g. identity fraud) 53 39 32 82
Improper use of position status (e.g. abuse of power, exceeding delegations) 39 36 49 47
Improper use of resources other than Internet/email (e.g. vehicles) 51 26 59 73
Private behaviour of employees (e.g. at social functions outside working hours) 23 18 74 78
Unauthorised disclosure of information (e.g. leaks) 24 11 33 73
Theft 8 7 50 86
Misuse of drugs or alcohol 9 7 56 71

Outcomes of finalised investigations

Table 3.7 shows reprimands remain the most commonly imposed sanction where a breach of the Code of Conduct is found, accounting for almost half of sanctions imposed. New data was captured this year on other management action taken by agencies where no breach was found.

Table 3.7 Outcomes of investigations into suspected breaches of the Code of Conduct, 2011–12 and 2012–13
Outcome Employees affected (no.)
2011–12 2012–13
Source: Agency survey
Note: An individual employee may be counted against more than one outcome.
Reprimand 315 238
Deductions from salary by way of a fine 171 120
Reduction in salary 85 82
Investigation discontinued because of resignation of employee under investigation 81 71
Termination of employment 51 38
Reduction in classification 16 16
Reassignment of duties 9 13
Breach found but no sanction imposed 30 9
Breach found but no sanction imposed—other management action taken (e.g. employee counselled) 53 16
No breach found 140 51
No breach found—other management action taken (e.g. employee counselled) N/A 29

Building decision-making capability

Findings of misconduct are important administrative decisions that have a significant impact on the rights and interests of the employee found to have breached the Code of Conduct, including their reputation and career prospects. Such decisions should provide assurance that the appropriate standards of behaviour are being enforced in an agency. They send a message to other employees about the agency's commitment to appropriate standards of behaviour and about the fairness and integrity of the agency's people-management practices.

The Merit Protection Commissioner reported in her annual report for 2012–13 that 34 applications were reviewed from employees seeking to have the finding they had breached the Code of Conduct, and/or the sanction imposed for that breach, overturned. This represented approximately 9% of Code of Conduct breach decisions in 2012–13.9 Fifty-six per cent of those decisions were upheld on review, and in 44% of cases a recommendation was made that the finding of breach and/or a sanction be set aside or varied. The proportion of Code of Conduct decisions set aside or varied by the Merit Protection Commissioner in 2011–12 and 2010–11 was 39% and 35% respectively.

The Merit Protection Commissioner's annual report also indicates agencies are referring some matters inappropriately for investigation as suspected misconduct. This includes, for example, individuals whose behaviour as a manager is impacting adversely on the people they manage. The Commissioner's Directions on the APS Values and the Commission's guidance make clear that not every failure to act consistently with the APS Values, Employment Principles and Code of Conduct needs to be dealt with by implementing misconduct procedures. Misconduct action is part of a range of people-management practices agencies have available to them to support high-quality performance.

In addition, the Merit Protection Commissioner has reported that the quality of agency decision making on Code of Conduct matters varies. Decision makers at times struggle to make findings of fact, particularly when evidence is unclear and contested. They also struggle to explain their reasons for finding that an employee has breached particular elements of the Code of Conduct. The Commission will use feedback from the Merit Protection Commissioner's casework to strengthen guidance on handling misconduct when the current Handling Misconduct guide is revised in 2013–14.

Footnotes

5 Serious misconduct was defined in the employee census as fraud, theft, misusing clients' personal information, sexual harassment, leaking classified documentation or other behaviour that would likely result in termination of employment.

6 Workplace harassment was defined in the employee census as offensive, belittling or threatening behaviour directed at an individual or group of APS employees that is unwelcome, unsolicited, usually unreciprocated and usually (but not always) repeated. Workplace bullying was described as repeated workplace behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to an individual or group of individuals. It can be overt or covert.

7 The provisions of the whistleblowing framework set out in the Public Service Act and Regulations continue in place until repealed by the Public Interest Disclosure Act 2013 which takes effect in January 2014. The outcome of a whistleblower report is a decision whether there is enough substance to the report to justify conducting an investigation under an agency's Section 15(3) procedures to determine whether there has been a breach of the Code of Conduct.

8 A total of 172 investigations were finalised in the Department of Human Services; 63 in the Department of Defence; 61 in the Australian Taxation Office; 29 in the ACBPS; and 26 in the Department of Immigration and Citizenship.

9 There is not a direct relationship between matters reviewed by the Merit Protection Commissioner and the number of breaches found against individual employees in any one year. This is because applications for review may be made in one financial year but not finalised until the next. Nevertheless, on average, the Merit Protection Commissioner reviews around 9% of Code of Conduct decisions.