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Chapter 6 - The determination and sanction

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.

This chapter focuses on determining whether or not misconduct has occurred and imposing a sanction on an employee if it has been determined that the employee has breached the Code.

For the purposes of explaining the different stages of the process for handling misconduct, the decision-making process and the imposition of a sanction have been separated from the investigative process. Depending on agency processes, the decision maker may or may not have been involved in the investigation and may not be the person to impose the sanction.

Role of the decision maker

Once the decision maker considers that the investigation process has been completed in accordance with the agency procedures and that all relevant evidence has been obtained, a determination should be made as to whether or not misconduct has occurred.

Agencies should ensure that there are procedures in place for obtaining assistance or legal advice, should the decision maker consider there is an element of uncertainty or risk in the process.

Given the importance of this role, agencies may wish to consider providing some training in administrative decision-making such as how to handle evidence or how to reason through to a defensible conclusion.

Relationship with a separate investigator

When a separate person has undertaken the investigation into suspected misconduct, the decision maker must:

  • play an important quality control role by reviewing the process, paperwork and recordkeeping of the case up to this point to ensure correct procedures have been followed
  • be satisfied that the investigation has brought them to a point where they can make a fair, balanced and conscientious decision. Identifying and rectifying flaws at this stage is much easier than dealing with the matter in a possible review process.

In the case where a separate investigator has provided a recommendation regarding whether a breach has occurred, the decision maker will need to ensure that they separately and independently exercise their decision-making power before forming any conclusion.

It is open for the decision maker to take an additional step of writing to the employee suspected of misconduct setting out the available evidence, indicating why the evidence supports a determination that they have breached one or more of the elements of the Code(if this is the case), and asking them for any further comment they wish to make prior to them making their determination. If the decision maker is confident that the investigation has been properly conducted and procedural fairness has been observed, this would not be necessary.

Standard of proof

The standard of proof used in determining breaches of the Code is ‘the balance of probabilities’. The decision maker must be satisfied that a breach is more probable than not. This civil standard of proof differs from the criminal standard of proof which is ‘beyond reasonable doubt’.

The standard of proof applicable to findings of fact or findings that the Code has been breached is the civil standard. That is, findings should be based on the conclusion that it is more probable than not that the matter found to have occurred, in fact occurred. However, before reaching a finding the decision maker needs to have regard to the gravity of the adverse consequences which might flow to the employee. In that sense, the civil standard of proof increases in accordance with the seriousness of the matter under consideration.

In Briginshaw v Briginshaw (1938) 60 CLR 336 the High Court of Australia referred to the need to act with much care and caution before finding that a serious allegation is established.

Preparing a decision record

Once all evidence has been collected and reviewed, the decision maker should prepare a written record of their decision which includes:

  • a summary of any additional evidence obtained by the decision maker, or a summary of the evidence obtained if the decision maker was also the investigator
  • consideration of the report prepared by the investigator, if the two roles are separate, and any additional evidence, noting areas where the investigator's analysis and recommendations are accepted, and areas where they are not (and why)—to avoid an administrative burden and to reduce the scope for errors, the investigator's report could be attached
  • a decision as to what happened
  • a decision as to whether misconduct has occurred, and if so which elements of the Code have been breached
  • the reasons for the decision.

Finding of no breach

If it is clear at this stage that that no breach has occurred, or that there is insufficient evidence to support a finding that a breach has occurred, the decision maker should advise the suspect employee as soon as possible. Agencies may also need to take action to remedy a loss of reputation. This is discussed briefly in the section of Chapter 5 under the heading ‘Evidence does not support a case of misconduct’.

Supervisors or managers should also identify any need for remedial action including training/ development and/or performance management measures.

Decision that misconduct did occur

If the decision maker decides that a breach has occurred, they should write to the employee informing them of the final decision. The letter should:

  • enclose a copy of the investigator's report and the decision maker's decision record
  • inform the employee of the name of the person who has been given the authority to determine any sanction, reiterate the range of possible sanctions, and what the next steps of the process will involve
  • notify the employee of their right to seek review of the findings under section 33 of the PS Act, noting that seeking a review will not operate to stay the finding of breach or consideration of the sanction.

Employee moves to another APS agency before a determination or a sanction

If an employee is suspected of misconduct and that employee moves to another APS agency before a determination is made, Direction 5.6 provides that the misconduct proceedings be undertaken in the new agency. If action had not commenced in the old agency, then misconduct procedures should commence in the new agency in accordance with the new agency's misconduct procedures. If misconduct proceedings were underway before the move, the new agency should recommence misconduct proceedings in accordance with its own misconduct procedures.

It would be open to the agency head of the new agency who decides to initiate misconduct procedures to utilise the expertise of employees from the old agency in the investigation if required.

Where an employee moves after a finding of breach but before application of sanction, it is not necessary for a fresh investigation to be carried out.The new agency head can apply a sanction, in accordance with the new agency's procedures, on the basis of the losing agency's finding of breach. An agency head's power under section 15 of the PS Act to apply a sanction extends not only to imposing sanctions on employees in their agency, in respect of findings of breach made under that agency's Code of Conduct procedures, but also in respect of findings made under another agency's Code of Conduct procedures.

The appropriate sanction

Once a determination has been made that an employee has breached the Code, the process of determining an appropriate sanction should begin.

Imposing a sanction

A sanction can only be imposed on an employee who is found by a decision maker appointed under the agency's section 15(3) procedures to have breached the Code.

The person who imposes the sanction must hold a delegation from the agency head of their powers under section 15(1) of the PS Act. Advice from the Australian Government Solicitor suggests the person imposing the sanction might usefully be delegated powers in the following way:

I, [agency head name], [title], [agency], acting under my powers of delegation under the Public Service Act 1999 (the Act) and the Public Service Classification Rules 2000 (the Classification Rules), delegate to [name], my powers under the Act and the Classification Rules to impose on an APS employee in [agency] who is found (under procedures established under section 15(3) of the Act) to have breached the APS Code of Conduct, the sanctions set out in section 15(1) of the Act.

This gives the sanction delegate indisputable authority to impose the sanction of termination of employment (under section 29 of the PS Act), or to impose a reduction in classification (under the Classification Rules), as well as the power to impose any of the other sanctions specified in section 15(1) of the PS Act.

Agencies need to consider whether they wish to separate the two roles:

  • determining if misconduct has, in fact, occurred
  • imposing an appropriate sanction.

Separating these roles may assist in minimising procedural flaws and provide a safeguard to the administrative law requirement about not having regard to irrelevant considerations.

Having separate decision makers for these issues would not prevent the person deciding on whether a breach has occurred also being tasked with recommending a particular sanction to the appropriate decision maker. However, the person holding the sanction power would need to exercise that power on the basis of their own consideration of the facts and not by blindly adopting another person's recommendation(s) as the sanction delegate is providing an important overall quality assurance role.

It may not always be necessary to separate out the decision about sanctions in all cases.

The risks, in straight forward cases involving less serious misconduct, of using the same person for making the decision on whether a breach has occurred and also deciding the sanction, are significantly smaller.

The separation of roles may also be difficult in smaller agencies. When the role of determining if there is a breach is combined with determining the sanction, extra care must be taken when imposing a sanction so that only those matters relevant to deciding the sanction are considered.

Role of sanction delegate

The role of the sanction delegate is one where they have been given the authority to determine a sanction from the range set out in section 15(1) of the PS Act. They exercise their power on the basis of their consideration of the facts.

Consistent with the Federal Magistrates Court decision in Walworth v Merit Protection Commissioner and Anor [2007] FMCA 24, it is preferable to adhere strictly to agency section 15(3) procedures for determining breaches of the Code of Conduct. While not every failure to comply with the section 15(3) procedures will render a decision invalid, where a sanction delegate (or anyone else, for example, the Merit Protection Commissioner) finds that section 15(3) procedures have not been adhered to (for example, a breach of the hearing rule or reasonable apprehension of bias), the relevant decision is likely to be invalid and consideration should be given to whether the process should be re-done before a different delegate.

The sanction delegate is unlikely to be able to formally revoke the breach decision, but could raise the matter with a relevant person within the agency. The only exception to this might be where there was unreasonable delay in coming to a decision. In such cases, re-doing the process would only further add to the delay. In an extreme case, the delay would invalidate the decision—in Lee v Jacka [1994] FCA 1381, the Federal Court held a decision to be beyond power because it was not exercised within a reasonable period.

That said, an invalid decision (that is, the original one), is still invalid. The judgement would be whether further delay would in itself render the decision invalid. It may be that in a case of a lesser but still undesirable delay, it would not be unreasonable to take the delay into account as a mitigating factor. Where these circumstances arise agencies should seek legal advice.

Consistency of sanctions

It is important that there is a degree of consistency within an agency in the use of sanctions for the same type of misconduct, where circumstances are essentially similar. However, there should clearly not be any simple, ‘formula driven’ approach to setting a sanction, and differences in sanctions between cases should reflect the particular circumstances of both the misconduct and the employee. Whilst striving for consistency in imposition of sanctions is desirable, some degree of variation is clearly appropriate.

To assist in maintaining consistency, agencies may find it helpful to:

  • consider limiting the delegation to apply a sanction to a small number of people within the agency and further limit the number of people with the delegation to impose more serious sanctions
  • provide clear guidelines on the factors to be considered in deciding on sanctions
  • have available a strong specialist HR and/or legal resource that can be consulted by decision makers
  • establish internal databases of cases and sanctions, and indicate that they should be consulted when determining a sanction.

Using a database to monitor cases and imposition of sanctions also assists strategic management of misconduct issues at the agency level (e.g. by identifying trends in types and numbers of misconduct).

Procedural fairness and notifying the employee

Provisions in the PS Act and Directions emphasise the need to ensure procedural fairness in relation to the making of a determination that an employee has breached the Code. However, the legal principles of procedural fairness also apply to the imposition of a sanction. This imposes an obligation to advise the employee of their proposed sanction (either by letter or by providing a draft copy of the report outlining the decision) before the decision is taken, and the reasons for it, including any factual material proposed to be taken into account such as mitigating circumstances. This is to ensure the employee is given reasonable opportunity to comment, particularly on the accuracy or weight of any factual material.

Following receipt of an employee's comments concerning the sanction(s) that might be applied, the delegate needs to decide if the employee's comments contain any information that would lead him or her to reconsider the proposed sanction. After making the final decision on the appropriate sanction the delegate should ensure that this decision is documented including the reasons for the decision and a date for the sanction to come into effect. The delegate must take responsibility for ensuring that the employee is promptly notified in writing of the sanction decision.

Date of effect

A sanction's date of effect will not necessarily be the same as the date a sanction is decided, as this will depend on allowing enough time for necessary administrative action to be taken, for example, organising a reduction in classification.

The date of effect stipulated for a sanction is not delayed where an employee who is found to have breached the Code applies for a review of that decision by the Merit Protection Commissioner or, in the case of termination of employment, the AIRC.

Sanctions available

An employee with the delegation to impose a sanction may impose one or more of the following sanctions (section 15(1) of the PS Act):

  • termination of employment
  • reduction in classification
  • re-assignment of duties
  • reduction in salary
  • deductions from salary, by way of fine
  • a reprimand.

There is no provision in the PS Act for any other form of sanction, but other management action may be warranted in order to reduce the risk of further misconduct (e.g. restricting an employee's access to the internet following a finding of internet misuse). Any such action should clearly be cast as management action and not as a sanction.

A determination that misconduct has occurred does not necessarily mean that a sanction must be imposed. A decision can be taken that other remedial action may be appropriate.

Factors to be considered in determining the sanction

The purpose of the Code is to ensure effective administration and to maintain public confidence in the integrity of an organisation's processes and practices rather than to punish individuals. Sanctions should focus on reducing or eliminating the likelihood of future similar behaviour. Some guidance on what agencies may reasonably and lawfully do to utilise the processes for handling misconduct by way of sending a message of general deterrence to employees is included in Chapter 9 under the heading ‘Quality assurance’.

Sanctions are intended to be proportionate to the nature of the breach, provide a clear message to the relevant employee that their behaviour was not acceptable, and act as a deterrent to the employee and others. Where a sanction is too severe, it is likely to be seen as unfair by the employee concerned, and others (if they become aware of the outcome), and may be counterproductive. The sanction should focus on the seriousness of what the employee has done—the number of elements breached is not, of itself, a relevant consideration. Prior misconduct is also relevant to the imposition of a sanction and might usefully be taken into account by the sanction delegate where:

  • it indicates that the employee was, or should have been, well aware of the standard of conduct expected and the potential consequences of misconduct
  • it demonstrates that the employee is apparently unwilling to adhere to the standard of conduct expected.

The courts have indicated a range of other factors that are or may be relevant in determining the level of a sanction. These are outlined below.

The nature and seriousness of breach including:

  • the type of conduct involved (e.g. discourtesy as compared to theft)
  • amounts, values or quantities (e.g. a minor degree of unofficial photocopying as compared to running a business using internal mail facilities)
  • the period over which the misconduct occurred
  • evidence of any personal benefit from the breach
  • the actual and potential consequences of the employee's conduct.

The degree of relevance to the employee's duties and the reputation of the APS including:

  • the seniority of the employee, with more senior employees generally expected to set an example for more junior staff, and required to exercise a greater degree of judgement
  • whether a breach of trust is involved
  • whether the nature of the breach has affected the confidence of the agency in the employee's ability to perform their current duties
  • any special job requirements (e.g. need to maintain professional and ethical standards)
  • extent to which the misconduct affects the reputation of the APS.

Whether the misconduct was uncharacteristic including:

  • the length of service, balancing a previously unblemished record against the expectation of greater awareness of behavioural requirements
  • whether there are records of previous counselling about related issues
  • the extent to which there is evidence that the behaviour is atypical—to assess this, the behaviour over a longer period may need to be examined (e.g. any records of informal counselling within the last two years)
  • the employee's attempts to stabilise any personal situations impacting on work (e.g. through accessing employee assistance schemes)
  • support by colleagues and supervisors (e.g. reports or references) in relation to work performance and general character.

Response to the misconduct, and the likelihood of recurrence including:

  • whether the employee admits the breach, shows a willingness to take responsibility, shows remorse and understands the seriousness of the breach
  • cooperation with the investigation
  • whether the employee has reflected on the action and how it can be avoided in the future and their commitment not to repeat the breach in the future.

The effect of the proposed sanction on the offender including:

  • any loss of earnings already incurred by the employee as a result of suspension.

Mitigating factors

The presence of mitigating factors may warrant the imposition of a lesser sanction than might otherwise have been imposed. These can include:

  • the degree of responsibility for the breach and whether there was any provocation, persuasion or even coercion by other employees
  • the intention of the employee to breach the Code and whether the breach was premeditated or involved a spur of the moment decision
  • the extent to which the employee's disability, health or other factors may have influenced their conduct (although care must be taken not to set multiple standards)
  • age, experience and length of service
  • the level of guidance provided by the agency in relation to the Code in general and explicit guidance or directions about the particular breach (including existence of consistently applied policies)
  • extent to which the breach may have reflected a culture or common practice in the work area which needs to be addressed as a systemic problem
  • any procedural issues, for example, unreasonable delay between the matter first coming to notice and the sanction being imposed.

When particular sanctions may be appropriate

The person imposing the sanction must be satisfied that the sanction is proportionate to the misconduct.

Termination of employment

Termination of employment is the most severe of sanctions. It is appropriate only where:

  • it is considered that the misconduct is so serious that it is no longer desirable that the employee should remain in the APS
  • the employee, through their action, has repudiated a basic element of the employment relationship (e.g. by indicating that they do not accept the need to follow lawful and reasonable directions from their managers).

While every case needs to be considered in the context of its particular circumstances, examples of behaviour determined to be a valid reason for termination of employment by the AIRC are in the box on the next page. Agencies should also refer to the Commission publication Termination of Employment.18

Reduction in classification

Reduction in classification is particularly appropriate where it is considered on the basis of the determined misconduct that the employee can no longer be trusted to perform the duties of their current position or another position at the same level of responsibility. For example where an employee demonstrates by their misconduct that they should no longer have any supervisory responsibilities, or responsibility for authorising payments, it would be appropriate to effect a reduction in classification.

Reduction in classification is also appropriate where termination of employment would be warranted but for mitigating factors that suggest that the employee should be given a chance to redeem themselves. Discussions would need to take place within the agency to ensure that duties were available at the classification level proposed, before the sanction is imposed.

A reduction in classification cannot be made to operate only for a specific period. The practical impact of the sanction will evaporate immediately if the employee secures higher duties or a substantive promotion to their original level.

As part of a reduction in classification under section 15(1)(b) of the PS Act, it was intended that an employee's salary would be reduced.

Where a reduction in classification is imposed it is important to specify the salary point to which the employee's salary will be reduced. This is because the power to reduce classification in section 15(1)(b) does not include an express power to set salary at a particular point. The level to which an APS employee's salary should be reduced may be informed by the terms of the industrial agreement applying to their employment. Where the level to which an employee's salary should be reduced is not clear from the relevant industrial agreement, it is recommended that the agency head impose two sanctions—a reduction in classification 15(1)(b) and a reduction in salary under section 15(1)(d)—to ensure that the agency head has the power to reduce the salary to a particular point.19

Where an agency head has not relied on the powers in both section 15(1)(b) and (d) to specify a lower salary as well as to reduce classification, the safest approach would be to decrease the employee's salary to the top pay point in the lower classification (if the industrial instrument provides for lower pay points).

Examples of behaviour found to breach the Code confirmed as a valid reason for termination by the AIRC

Repeated and consistent failure, when acting in the course of APS employment, to treat everyone with respect and courtesy and without harassment (as required under section 13(3) of the PS Act):

  • An employee was terminated after behaviour that included making blatantly false allegations, dogged refusal to acknowledge relevant policies and the Code, grievance- based harassment of fellow employees and managers; concoction of assault stories; and inability to communicate with other staff and to conform to normal behavioural standards (McKeon v Centrelink, PR911316—this case also involved breaches of sections 13(1) and 13 (5) of the PS Act).
  • In another decision, the AIRC noted that, despite warnings, the approach of the employee in relation to providing co-workers with respect and courtesy did not change (Curr v ATO, PR953053).
  • These appear to be the most common type of behaviour where terminated employees seek remedies through the AIRC, with behaviour involving treatment of colleagues, junior staff, supervisors and customers.

Serious failure to behave with honesty and integrity in the course of APS employment:

  • failure to disclose dismissal from previous employment for Code breaches along with failure to declare participation for profit in a private sector company whose business related to the business of the agency (also breached sections 13(9) and (11)) (Ahmed v Department of Immigration and Multicultural Affairs, PR916461)
  • misuse of departmental credit card (Department of Employment and Workplace Relations v Oakley, PR954267 and PR954267—also involved breach of sections 13 (5), (10) and (11)). This decision is also significant in that the Full Bench held that it was appropriate and reasonable to delay taking Code action so as not to prejudice criminal proceedings about the same matter, and that the decision to place the employee on alternative, restricted duties was appropriate and preferable to suspension.

Failure, generally repeatedly, to comply with lawful and reasonable directions:

  • directions in relation to return to duty (A Romanov-Hughes v Department of Defence, PR920194

Serious misuse of Commonwealth resources:

  • receiving, storing and sending pornographic or otherwise sexually explicit emails or other offensive material using the employer's email system (Williams v Centrelink, PR942762—also found to be a breach of section 13(11)—and O'Neile v Centrelink, PR973658).

Re-assignment of duties

The sanction involving a re-assignment of duties at the same classification level (including to a different location) is intended to be used in situations where the integrity and effectiveness of the APS may be compromised if employees are not removed from a particular location or from their present duties, even though the conduct in question does not warrant termination of employment. For example, this could occur:

  • where the nature of the employee's conduct is such that it may be difficult for colleagues to continue working harmoniously with them
  • where an employee is no longer trusted to take due care with a particular aspect of their current duties, for example, the handling of cash.

Where the reassignment involves a change of location, the sanction should be used only after careful consideration of all the circumstances, taking into account the impact on the employee, such as the financial costs and the effect of dislocation on the employee and his or her family.

Discussions would need to take place within the agency to ensure that a position in another area/location was available, before the sanction is imposed.

This sanction could be imposed for a defined period if it incorporated a decision to return the employee to their former duties after a specific period.

Reduction in salary

A reduction in salary can be used to demonstrate the seriousness with which the employee's conduct is viewed. It may be particularly appropriate where the employee's conduct does not indicate that he or she understands the seriousness of the breach they have committed and as a signal about appropriate behaviour.

A reduction in salary can be imposed for a temporary period or for an indefinite period.

Generally, the reduction will be subject to any subsequent salary event, such as a promotion or a salary increase provided for in an agreement. It is, however, possible for an agency to impose a salary reduction for a defined period that makes provision for how the reduction would interact with any subsequent salary event—the sanction could state, for example, that there will be ‘a reduction of 10% in the salary which would otherwise be payable from time to time over a 12-month period’.

The period for which a reduction in salary is to have effect should be clearly specified at the time the sanction is determined. Once the period of sanction is complete, the employee is entitled to be paid the salary at the level the employee would have received if they had not been subject to the temporary reduction. (Refer also to comments under reduction in classification)

Deductions from salary (fine)

This sanction is appropriate for less serious breaches, where it is appropriate for the agency to demonstrate the seriousness with which the employee's conduct is viewed, but it is not appropriate for the sanction to have long-term financial implications for the employee. A sanction of a fine may be imposed by way of a one-off deduction or by deducting an amount from salary each pay for a defined period.

Deductions from salary are limited to no more than 2% of an employee's annual salary. In determining the upper-limit of a fine in a particular case, the decision maker needs to consider carefully the meaning of the term ‘salary’ in the light of the agency’s remuneration arrangements.

Reprimand

A reprimand is the least severe form of sanction and is most appropriate in situations where the misconduct is not of a grave nature, or where it is clear that the employee has learned from the disciplinary process and presents no appreciable risk of further misconduct.

It acts as both a mark of disapproval of past conduct and as a warning for the future.

It should be noted that where a reprimand is imposed it is subject to the same standards of recordkeeping as apply to other sanctions. For this reason it may be practical for the reprimand to be administered at a face-to-face meeting, by reference to a written record of the reprimand, which is provided to the employee at the conclusion of the meeting, with a copy placed on the conduct file.

Agencies should also consider who would be the most effective person to deliver the reprimand—generally a reprimand delivered by a higher level manager will carry greatest weight.

Applying multiple sanctions for one breach

It is possible for more than one sanction to be applied to an employee found to have breached the Code if the person imposing the sanction is satisfied that more than one sanction is appropriate in the circumstances of the case and can give a proper reason for their decision. For example, an employee may be re-assigned duties and have a fine imposed.

Applying sanctions for multiple breaches

It is usually appropriate to reflect the existence of multiple related breaches in a more severe sanction rather than separate sanctions for each breach. Where the breaches are unrelated, for example a harassment incident and an unrelated theft, separate sanctions may be appropriate. In any case, the decision maker should, after deciding what sanction is warranted in relation to each breach, consider these decisions in order to ensure that the total effect is not disproportionate (i.e. neither too harsh nor too lenient) to the seriousness of the breaches considered as a whole—in other words, apply the totality principle ‘take a last look at the total to see whether it looks wrong’, Mill v The Queen, (1988), 166 CLR 54.

Key points for agency guidance material

Agencies may wish to consider developing a checklist and a template for reports and sample letters to assist decision makers and to ensure both consistency in reporting standards and the application of procedural fairness.

Guidance material should include:

  • advice on the role of the decision maker
  • advice for the decision maker on the breach about preparing 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.

It should also provide guidance on handling the process of notifying the employee of a proposed sanction.


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Footnotes

18Terminating APS employment

19 It is possible for more than one sanction to be applied for an employee found to have breached the APS Code if the person imposing the sanction is satisfied that more than one sanction is appropriate in the circumstances and can give a proper reason for their decision.