The Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988 are relevant to the keeping of written records of misconduct actions—with the latter two Acts also related to access to, and use of, records.
The National Archives of Australia Administrative Functions Disposal Authority of February 2000 (Disposal Authority) provides information on the retention of records and sets out minimum periods for which various classes of records relating to counselling and misconduct matters should be retained.
Such records include records documenting:
- matters which form the basis for an investigation of whether there has been a breach of the Code
- formal investigations of alleged breaches of the Code
- reviews of, or litigation about, Code decisions
- the determination and implementation of a sanction.
This Disposal Authority sets out minimum retention periods for each of these types of documents. Full details can be accessed through the National Archives of Australia website: http://www.naa.gov.au/recordkeeping. A summary of the main provisions is included in Appendix 4.
The Disposal Authority was developed through a process of extensive consultation with agencies. It provides a useful benchmark of contemporary APS norms as to the minimum length of time that previous conduct is regarded as still relevant in making later decisions about an employee. However, the decision whether records should be kept for a period longer than the minimum established by the Disposal Authority rests with the agency.
Agencies will need to establish policies that set out how long different records are to be retained in the agency—for example, for cases of suspected serious misconduct where the employee resigns, an agency may decide that the records should not be destroyed. While not all documents need to be kept for the same amount of time, the retention periods set by agencies must be consistent for the same type of document.
Agencies should make policies concerning the retention of documents relating to suspected misconduct and misconduct readily available to all employees.
Records relating to misconduct action need to be kept separate from the personal file of the employee concerned. The existence of a separate misconduct file should, however, be made apparent on the personal file (e.g. by cross-reference).
Files of this kind are to be classified ‘In Confidence’ and should be held in secure storage.
Access for management purposes should be allowed only on a strict need-to-know basis. Decision makers, who either are determining whether the Code has been breached or who are deciding an appropriate sanction, should have access to these records.
The person(s) involved in the investigation and decision-making should be responsible for the maintenance and security of the file records. Material placed on the misconduct file should include:
- all correspondence with the suspect employee, including the letter informing them they are suspected of breaching the Code, the letter that fully outlines the ‘case against them’, the letter advising them of the final determination, the letter outlining the proposed sanction and the reasons for it and the letter advising them of the sanction and their review rights
- any attachments to the correspondence
- all relevant email correspondence relating to the investigation, decision-making or imposition of a sanction
- all material associated with planning the investigation such as records of telephone calls, letters or emails organising interviews
- copies of any draft material provided to the employee for comment
- the investigation report with all relevant evidence attached including such items as transcripts of evidence
- the employee's response to the correspondence.
Retention and disposal of misconduct records
In determining how long records are to be retained, agencies must take into account that misconduct proceedings are designed to protect the integrity of the APS and to prevent recurrence of any behaviour(s) rather than punish a person for the rest of their working life. Timeframes need to be fair and reasonable and reflect a balance between the needs of the agency, the employee and the public interest.
Agencies should ensure that records are destroyed in accordance with agency procedures. This also means there is a responsibility to ensure that records are destroyed appropriately when employees with a current misconduct record move to other agencies.
Included below are the minimum requirements contained in the Disposal Authority.
Findings of no misconduct
If there has been an investigation into suspected misconduct of an employee and it is decided that the allegations are unfounded, then any records should be destroyed 18 months after the investigation is completed. However, the employee concerned may request that the records be kept for the later of either:
- until the employee reaches the age of 75 or
- 7 years after the last action relating to the suspected misconduct.
The employee may also request that the records be destroyed at a specified time.
If an allegation is made of misconduct but no follow-up investigation is made because it was considered frivolous or vexatious or without substance, all records should be destroyed 18 months after the last action in the file.
Findings of misconduct
If, in the period of five years after a finding of misconduct against an employee is made, there have been no new breaches of the Code:
- the misconduct record of the employee should be destroyed and any cross reference in his or her personnel file should be removed
- the employee concerned should be informed in writing that the misconduct record has been destroyed and that any reference in their personnel file has been removed.
Termination of employment as a result of a breach of the Code remains on the public record.
If an employee who has been found to have breached the Code re-offends within five years, the records of earlier offences should be kept for a further period of five years.
Investigation not finalised
If an employee resigns during the course of an investigation of suspected misconduct, any documents that have been obtained or created up to the date of resignation should be retained on a separate misconduct file, even where the investigation is not complete.
Access to misconduct records
Under the Information Privacy Principles (IPPs) of the Privacy Act 1988, the purpose for which personal information was originally collected is a crucial factor in determining how it can be used and to whom it can be disclosed outside the agency. Agencies should refer to the information on the website of the Office of the Federal Privacy Commissioner: http://www.privacy.gov.au.
Agencies need to think carefully how they frame the purpose of the collection of personal information. The purposes for which they collect information in relation to misconduct and usual practice as to how information might be used or disclosed should be set out in an agency's privacy or human resource management policies. In addition, when collecting information directly from individuals, agencies should make them aware of how it may be used or disclosed in accordance with the IPPs, for example, that information may need to be passed on within the agency or to law enforcement authorities if it is considered that there may be a breach of the Code or the criminal law.
In deciding whether material that formed the basis for a finding of misconduct or that comes to light through an investigation can be used for other purposes, agencies need to consider:
- the IPPs (in particular IPP2, IPP9, IPP10 and IPP11)
- administrative law principles, including the need to have regard only to relevant considerations and the rules of natural justice
- Commonwealth and state or territory spent convictions legislation—in cases where a sanction was imposed for a breach of the criminal law
- the duty of care to other employees under occupational health and safety legislation should an investigation reveal risks to the safety of other employees.
Some directly related purposes or purposes authorised by law where information relating to previous counselling or sanctions for misconduct may be relevant include:
- pre-employment checks with prior APS employers for the purposes of a character clearance under section 22 of the PS Act
- promotion decisions
- protective security assessments
- in assessing an employee's performance where performance management schemes have regard to whether an employee embodies the APS Values and the Code as well as achieves outcomes
- to demonstrate that the employee was investigated but exonerated or that there was insufficient evidence found to take action
- as part of an employee's salary record for the purpose of calculating salary, long service leave and superannuation entitlements
- considering what sanction to impose.
Agency policies should also provide that, regardless of whether misconduct records have been removed from an employee's personal file or not, managers should not have regard to past findings of misconduct once the agency-determined retention period has expired.20
It may be lawful for agencies to provide information on misconduct to other employers or potential employers but the applicant will need to be informed of this and given the opportunity to comment by the employing agency or potential employing agency (refer to the Australian Public Service Commission's Circular No 2007/2: The Privacy Act and employee information concerning Code of Conduct matters).
Before providing any information, agencies should ensure that all recordkeeping procedures have been followed such as destroying a misconduct record when the required period has passed since the last action on the record.
When passing misconduct records to a new agency following the movement of an employee, agencies should ensure that the employing agency is aware of the recordkeeping guidelines that apply to the misconduct record and advise the agency when any material is due to be destroyed. Similarly, if an agency receives files with misconduct records they should ensure that they are aware of the recordkeeping requirements of the other agency generating the records and adhere to them as if they were their agency's recordkeeping procedures.
Considering misconduct in the selection process
The selection process is a key means by which an agency gains relevant information regarding eligibility and suitability from applicants.
As candidates are not bound to identify any problems if not specifically asked, they should be specifically asked for relevant information on their previous work history. While it may not be possible to ensure that all information provided by applicants is accurate, agencies need to be aware of the risks in not checking information provided.21
Having a work history that includes a finding that the employee has breached the Code or being investigated for a suspected breach does not automatically exclude that employee from consideration in a selection process. If an applicant discloses prior misconduct or the delegate or panel is aware of prior misconduct, a decision on whether the person is suitable for employment should not be made without assessing the work-related qualities of the applicant against the identified work-related qualities (which includes personal qualities) genuinely required for the duties.
When dealing with a previous breach of the Code, the following factors should be considered:
- the nature of the breach (or suspected breach)
- the sanction imposed
- how long ago the breach or suspected breach occurred
- the nature of the duties being performed at the time
- the duties of the current employment opportunity
- whether this was a one-off action or part of a pattern of behaviour.
If an applicant is involved in a misconduct action that has yet to be finalised, care needs to taken so as to not prejudge the outcome of any investigation while ensuring the work related qualities of the employee are appropriate for the duties to be performed. If, after the assessment of the person's work-related qualities, the person is a preferred applicant, the options available include:
- awaiting the outcome of the investigation (if feasible)
- proceeding with the assignment of duties or movement if the proposed breach is considered minor or the possibility of such a potential breach in the new agency is low
- offering the person a temporary assignment or movement pending the finalisation of the investigation.
Referee reports and misconduct
It is a common practice for APS agencies to ask applicants seeking promotion or movement at level to obtain a referee report from their current supervisor or manager.
The IPPs apply to giving a referee comment regardless of whether there are issues with the employee such as underperformance, poor attendance or misconduct.
Supervisors should avoid any comment in a referee report that is unrelated to the employee's work performance. Any comment that is made must be relevant to the selection criteria.
In determining whether to disclose information on a prior or suspected breach of the Code, factors that must be taken into account include:
- the nature of the breach or suspected breach
- how long ago the breach occurred
- the duties being undertaken at the time and the proposed duties of the new work
- the employee's conduct since the breach.
Where an employee whose conduct is under investigation asks a referee from the agency to provide a report and the investigation may be relevant to the work-related qualities required for the job, the referee could indicate that there have been concerns as yet unresolved where the situation warrants it. To go beyond that could be seen as prejudging the situation, particularly where there is no clear determination of misconduct.
Where an investigation has concluded that the employee did not breach the Code, it would be inappropriate for the referee to make any reference to the investigation, unless the investigation resulted in some findings relating to matters of performance or attitude which, although not amounting to misconduct, may nevertheless reflect on the employee's suitability for the employment opportunity in question.
If a breach of the Code has been found to have occurred, and where the breach is relevant, the referee may include an outline of the circumstances surrounding the breach and comment on the relevance of the matter to the position.
Whether the investigation is in progress or has been concluded, an employee's conduct, or misconduct, record is relevant only to the extent that the circumstances have a bearing on the duties and the qualities required for the position for which the reference is being sought.
In all cases, the weight to be given to records of determined misconduct will diminish over time.
Key points for agency guidance material
Agency guidance material should include information, some of which can be drawn from this chapter, on the following:
- 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 be placed in the agency's recruitment and selection procedures—for example, including a requirement, as part of the pre-engagement or movement checking process, for prospective employees to declare any relevant misconduct matters.
Where an APS agency is considering employing a current or former employee of another APS agency, it could seek the (prospective) employee's consent, as part of the pre-engagement or movement checking process, to the agency seeking information about suspected or determined misconduct and Code of Conduct processes from, and disclosure by, the person's current or former agency.
Agencies should consider advising in applicant information packs that this information may be requested if there are concerns raised about the applicant's conduct from information provided during the selection process.
20 Agencies should note the decision of the AIRC in Walsh v Australian Taxation Office [PR951810], Sydney, 4 March 2005.
21 Agencies should refer to the Commission publications Ongoing Employment—Recruitment and Selection and Conditions of Engagement for advice on pre-employment misconduct and imposing conditions of engagement.