The earlier chapters of this good practice guide have presented information on good practice in relation to the processes surrounding the reporting and management of misconduct.
This chapter outlines a number of mechanisms agencies can employ to ensure that the processes of handling misconduct are appropriate and provides advice as to where the process for handling misconduct can be streamlined to ensure that processes avoid unnecessary delay. A number of common pitfalls are also identified to alert agencies to potential problem areas.
Agencies should consider implementing the following key quality assurance mechanisms in the process for handling misconduct:
- having several options available for employees to report suspected misconduct
- providing detailed guidance to the managers making the important initial decision of whether the suspected misconduct is a minor matter, or a more serious one, to ensure fairness and consistency in the treatment of suspected misconduct
- ensuring that the decision maker who determines whether a breach has occurred has the necessary skills, experience and resources including knowledge of the investigation process
- having a final checking process so that the decision maker is able ensure that the required processes and paperwork associated with the investigation and determination are complete prior to the final determination being made
- considering whether a separate person should be delegated the power to determine the appropriate sanction
- limiting the number of people in the agency with the delegation to determine a sanction to only a few people
- making available detailed, clear guidance material to all employees about the reporting and management of suspected misconduct.
There are a range of other quality assurance mechanisms that can be advisable for agencies to use as part of their governance procedures.
- Conduct periodic training focussing on the relevance of the Code to employees' day- to-day work including the use of realistic scenarios directly relevant to the work of the agency. This training should also include information on the options for reporting misconduct within the agency.
- Regularly review agency written guidance material on reporting and dealing with misconduct to ensure it is kept up to date, including contact details of relevant people
- Make judicious use of case studies based on situations that have occurred in the agency to assist in educating employees about how different types of misconduct are dealt with, and what sanction can be expected in relation to different types of misconduct. Case studies should not include any information that could identify the individuals involved.
The publicising of recent cases can have significant deterrent effects, but their use should be approached with caution given the requirements of the Privacy Act 1988. It is important to de-identify cases as much as possible but it is likely that there would be a lower risk that such use/disclosure of personal information would be contrary to the Information Privacy Principles (IPPs) in the Privacy Act 1988 if the affected employee has been made aware that the information may be used or disclosed in line with the disclosure provisions in IPP2 both in general information to all employees and at the time of the investigation. An alternative approach suggested by the Office of the Federal Privacy Commissioner is that in compiling case studies for training or educative purposes amalgamated scenarios or ‘dummy’ facts could be used. Reported AIRC cases examining termination of employment decisions are public documents and can be used freely in any educative material.
- It is important to note that withholding a person's name may not be sufficient to protect that person's identity. Personal information can include any information or opinion from which a person's identity is apparent or may be ‘reasonably ascertained’.
For example, in a small agency or in a rural or regional area, information about an employee's work area or location or even the type of complaint may be sufficient to identify that person. This should be taken into account when considering whether and what information to release to a third party.
- Integrate a requirement, tailored to be appropriate to different responsibilities at different levels, to demonstrate a knowledge and commitment to the Values and the Code into an agency's performance management system.
- Include questions, in a periodic staff survey, to establish the level of employee knowledge on how to report misconduct, their confidence in being protected from victimisation and discrimination if they report misconduct, whether or not they have observed serious misconduct in the last 12 months, of the Code generally, and their views on whether their colleagues and managers behave in accordance with the Code. If an agency would like assistance with the formulation of questions please contact the Director of the State of the Service team on (02) 6202 3575 or StateoftheService [at] apsc.gov.au.
- Establish a centralised function within the agency that collects data and monitors progress of misconduct cases. This would include the establishment of a data base of cases including sanctions to assist in ensuring consistency of handling cases and in sanction setting. This function would also act as a quality control mechanism (e.g. checking on timeliness of cases) and be able to provide data to senior management on the number and types of misconduct cases for strategic monitoring purposes, the numbers of reviews sought and the outcomes of any such reviews.
- Ensure regular reports to the agency executive or senior management team on important issues such as any obvious trends, or any systemic issues arising or recommendations for action.
- Periodically conduct a file audit of a sample of misconduct files to evaluate if correct procedures and recordkeeping requirements are being followed.
Avoiding unnecessary delay
Each agency head is required to establish procedures to investigate and determine suspected misconduct. Those procedures must, at a minimum, be consistent with the Public Service Commissioner's Directions. These minimum procedures may be quite brief, and essentially concerned only with the requirement, before any determination is made, to provide the employee with:
- full details of the suspected breach of the Code
- a reasonable opportunity to make a statement in relation to the suspected breach.
The Directions stipulate only that the process for determining whether an APS employee has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows. Ensuring the timeliness of misconduct action is important for a number of reasons. Delays not only affect the agency and the employee, but can also be a factor considered in external review. If the case goes to review after an excessively lengthy process, particularly where a high impact sanction has been imposed (e.g. termination or a reduction in classification), generally it will be a factor that will go against the agency's position unless there are good reasons for the delay.
Understanding the steps in the process for handling misconduct
There are a number of ways agencies can minimise the time taken in handling misconduct.
Pre-investigation stage (see Chapter 4)
At this stage of a process a manager has become aware that an employee may have breached the Code and must consider what action, if any, to take. There are a number of issues influencing timing that should be considered.
Formal or informal?
- In many cases, particularly those which are less serious and where the suspected behaviour of the employee is unintentional or atypical, it may be more effective for the manager to deal directly and informally with the employee about their conduct.
- Where a decision is taken to move to a formal investigation into the matter, that decision should be put into operation promptly and a decision maker authorised under the agency's procedures as soon as possible. Agencies may find it useful to maintain a pool of employees who have experience or relevant training in conducting investigations of this kind, and are familiar with the administrative law principles that underpin them.
- Often the person authorised to make a determination that an employee has breached the Code is a relatively senior employee. Where the employee authorised to make the determination concerning suspected misconduct is also expected to manage their normal workload during the course of the investigation, it is often useful to provide that person with assistance to conduct the basic evidence and information gathering, interview witnesses, draft correspondence, and even draft the final report for the decision maker. Guidance material can make clear that this is an acceptable approach.
- An employee is entitled to be told of the details of the suspected breach of the Code before the determination is made. However, they do not have to be advised of this by the person authorised to make the determination. An agency could advise an employee that they are being investigated and set out the basis for that (e.g. element(s) of the Code suspected of being breached, a description of the suspected behaviour, evidence available at the time) at the same time that they advise the employee of the identity of the person authorised to make the determination.
Agencies can elect to have any decision about suspension made by a person other than the person authorised to determine whether there has been a breach of the Code. Giving this responsibility to another employee will:
- allow the person conducting the investigation to focus clearly on the question of whether the employee has breached the Code
- reduce the concerns of the employee about possible prejudgement
- allow the agency to develop a core of experience dealing with the special concerns raised by questions of whether an employee should be suspended.
Public Service Regulations 3.10(4) and (5) requires that the person exercising the suspension delegation retains contact with the Code investigation to ensure that they can properly review the decision to suspend the employee, or to revoke the suspension in the event that
- a determination is made that the employee did not breach the Code
- a sanction is imposed on the employee in relation to a relevant determination that the employee breached the Code.
Investigation stage (see Chapter 5)
Investigations into suspected breaches of the Code are fundamentally concerned with gathering material relevant to the question being determined. A number of aspects of this process can affect timeliness.
From time to time some concern is expressed that misconduct investigations are unduly delayed by the need to comply with procedural fairness. In particular, the requirement to provide the employee with an opportunity to put their case, and who exactly should be given the opportunity to comment, are advanced as the reasons for delay in some cases.
However, it is important to note that:
- procedural fairness will not always require that the material be put in writing. In many cases, for example, it can be put to the employee at an interview and discussed at that time
- nor will it always require that the employee be given an extended period of time to consider the material, or that the employee should be allowed to decide the timetable for providing comment.
The rule requires that the employee be given reasonable opportunity, not a perfect opportunity. What will amount to a reasonable opportunity will vary according to the circumstances, but it is not what the employee under investigation believes is a reasonable opportunity. Rather, this is determined by an objective standard; that is, what a reasonable person would believe was a reasonable opportunity given the circumstances.
The person making the determination should also bear in mind that procedural fairness is not owed to everyone involved in an investigation. The obligation arises only in relation to those people for whom the decision might affect a right or interest. Usually this will be confined to the subject employee rather than, for example, witnesses questioned in the course of an investigation.
While there is an obligation to provide a reasonable opportunity to comment, the guiding principle is that this needs to be balanced against the seriousness of the suspected conduct and the other circumstances that apply. It is suggested that, in most cases, no more than seven days would need to be allowed as the period in which to provide such comments.
One of the most common forms of information gathering in any investigation is the use of interviews, whether in relation to the suspect employee, a complainant, or witnesses. It is good practice to ensure, where possible, that the record of such interviews is complete and agreed with by the interviewee.
Usually this agreement will be recorded by the interviewee signing the record in some form to indicate that they have read and agreed with it or by an exchange of correspondence(perhaps by email). If a person is provided with material in draft for comment and a reasonable timeframe for response beyond which the material will be regarded as final, it may be regarded as final and further correspondence need not be entered into.
Where the interviewee disputes some matters in the draft record, it is not always necessary to reach agreement. Where, for example:
- agreement appears to be unlikely
- agreement would take an unwarranted period of time to achieve
- the matter concerned is of limited relevance to the issue being investigated it is open to the person conducting the investigation to place their version of the interview on the record and add a statement (often provided by the interviewee) to that record, noting the areas of disagreement.
Misconduct investigations typically gather information from employees and other people involved in a matter.
Information that tends to establish that a suspect employee has, or may have, breached the APS Code of Conduct would be regarded as personal information.
Personal information relating to a misconduct investigation must be handled within the boundaries set by the Privacy Act 1988 and the PS Act. Within the context of obligations of APS agencies under the Privacy Act 1988, personal information applies only to individuals and the content must be about that individual.
The collection, storage, use and disclosure of information of this kind is regulated by the Information Privacy Principles (IPPS) under section 14 of the Privacy Act 1988. It may be useful for agencies to develop standard approaches in their guidance material. For example:
- It is good practice for all APS agencies to put employees on notice, using a valid IPP 2 notice, which makes employees aware upon commencing employment with the agency as to the potential use and disclosure of Code of Conduct information.
- At the beginning of an investigation about a complaint, agencies should (among other things) ensure that the employee who is the subject of an investigation is familiar with the agency's policy in regard to complaint handling and answer any questions the employee may have at this time about the policy and the complaint under investigation. For example, IPP 2 notices should be as specific as is reasonably possible to ensure that employees are aware to whom their personal information may be disclosed.
Agencies should advise the employee being investigated, in writing, that a complaint investigation is underway, what the complaint is about and that personal information about them may be disclosed to others, where necessary and appropriate.
Where an investigation has been completed and part of the recommendation is for the employee's personal information to be released to another person, body or agency (including the complainant), the individual concerned should be advised and provided with an opportunity to respond to the proposed release of their personal information prior to release. In other words, the principles of natural justice should be applied. A reasonable timeframe, understood by both parties, should be allowed for this response and should be sufficient to allow, for example, the employee to seek advice as necessary. Records should be kept of any decisions to disclose personal information about an employee to another person, body or agency.
- When a person conducting an investigation is interviewing a witness they might use a form of words such as:
This is an investigation being carried out under procedures established by the agency head under section 15(3) of the Public Service Act for the purpose of determining whether another employee has breached the APS Code of Conduct. A record of this meeting will be kept and may be released in whole or in part for the purposes of making that determination. Do you consent to the release of that information? If not, do you understand that it may be released where necessary in any event?
These words could then also be written into the record of the interview.
Sample clauses on disclosing information for inclusion in agency code of conduct procedures are at Appendix 6.
The circumstances in which personal information gathered in the course of a misconduct investigation may need to be used and disclosed are as follows:
Providing information to a complainant about the outcome of a Code of Conduct investigation
Where a complainant has raised issues about an APS employee's actions or behaviour, or the processes, actions or conduct of an agency, information about the outcome of an investigation may need to be provided to the complainant. It should be possible in most circumstances to give a complainant adequate information about the way their complaint has been handled without disclosing personal information about an employee.
In this situation, there is a further requirement to achieve an appropriate balance between the needs of the employee, the agency and the complainant in relation to the use and disclosure of personal information. Agency heads (or their delegates) should exercise judgement on a case by case basis when considering what personal information about an employee should be released to the complainant.
There are a number of factors to consider before releasing personal information.The primary consideration for agencies should be that disclosure of personal information under IPP 11 regarding misconduct is managed in such a way that an employee's identity is not revealed unless it is necessary, appropriate and reasonable to do so. This is particularly important where the complainant is employed in the same agency.
A sample letter advising complainants on the outcome of a Code of Conduct investigation is at Appendix 7.
For further information on the circumstances in which an agency can lawfully disclose personal information about an employee to a complainant please refer to the Commission's Circular No 2008/3: Providing information on Code of Conduct investigation outcomes to complainants. If an agency is in doubt as to whether it can lawfully disclose personal information about an employee to a complainant in a particular case, it should seek legal advice.
Sharing information between APS agencies about Code of Conduct matters for employment related purposes
This could include where an APS agency is considering employing a current, or former, employee from another APS agency, where that employee:
- has been subject to a finalised Code of Conduct investigation
- has been notified that they are under investigation for an alleged or suspected breach of the APS Code
- is the subject of an allegation of a breach of the APS Code that has not been addressed.
The purposes for sharing information between APS agencies about Code of Conduct matters for employment related purposes includes for selection/recruitment processes and progression of Code of Conduct investigations.
This can involve:
- the ‘use’ of information for another purpose other than which it was collected (IPP 10.1(a))
- the ‘use’ of information for a purpose directly related to the purpose for which the information was obtained (IPP 10.1(e))
- ‘disclosure’ of information from one APS agency to another APS agency (IPP 11.1(b)).
The person the information is about must be informed about and freely consent to the use and/or disclosure of their personal information. A ‘consent’ from a person who has no other option but to consent is not adequate for exceptions under IPPs 10.1(a) or 11.1(b).
For further information on the steps agencies can take to lawfully ensure that employees are reasonably likely to be aware of the circumstances in which Code of Conduct information may be disclosed to another APS agency refer to the Commission's Circular No 2007/2: The Privacy Act and employee information concerning Code of Conduct matters.
If an agency is in doubt as to whether it can lawfully release information to another agency in a particular case, it should seek legal advice. If an agency is in doubt as to whether it can lawfully collect and use information in a particular case, it should seek legal advice.
Burden of proof
As a civil administrative matter, the decision that an employee has breached the Code is made on the ‘balance of probabilities’—that is on the basis of what is most likely to have happened.
It will always be a matter of judgement for the decision maker about the extent to which they follow up on every line of inquiry that arises during the investigation, or only those which are of substance and which, if established, will have a direct impact on the decision to be made. In other words, if the available evidence strongly suggests a decision one way or the other, it may not be necessary to follow up on a particular question if the resolution of that question will not ‘tip the balance’.
Avoiding common pitfalls
There are a number of common pitfalls that are often faced by employees conducting a misconduct action.
Agencies may wish to highlight these in any agency guidance along with any other pitfalls experienced within the agency.
Things to avoid
Employees involved in a misconduct action should avoid the following:
- confusing the roles of the decision maker who determines whether a breach has occurred, and the investigator—the decision maker retains overall responsibility for the processes associated with making the determination (see Chapters 5 and Chapter 6)
- not giving the accused employee and/or witnesses the opportunity to respond to new and/or conflicting evidence during the investigative process (see Chapter 5)
- approaching the investigation with the attitude of ‘proving the allegation’ rather than a disinterested attitude of finding out all the relevant facts and circumstances (i.e. starting with a presumption of guilt)
- inadequate investigation reports that are not clearly structured and do not explicitly evaluate and weigh-up the available evidence including conflicting evidence
- agency employees making comments about the case that presume the accused employee's guilt prior to a determination being made—this type of comment, made particularly by more senior employees or by a decision maker, can result in the decision being overturned on review, because of perceptions of bias
- not fulfilling all procedural fairness requirements, in particular, not giving the employee the opportunity to respond to the full case against them prior to the determination being made or not giving them the opportunity to respond to the proposed sanction
- not considering information on recent sanctions for broadly similar types of misconduct across the agency to ensure greater consistency in sanction setting
- not clearly setting out the reasons for preferring a particular sanction
- poor recordkeeping practices—if key documents and correspondence are missing from the file this can significantly weaken the agency's position if the case goes to review
- undue delay.
Key points for agency guidance material
Agency guidance material could include information, some of which can be drawn from this chapter, on the following:
- references to the agency's quality assurance mechanisms, including appropriate feedback processes that can feed into the regular evaluation of the process for handling misconduct
- advice to employees on how delays can be minimised within the agency's procedures
- a checklist of common pitfalls identified within the agency.
Agencies may also wish to consider developing templates, checklists and sample letters in accordance with agency misconduct procedures and other related policies. These will assist investigators and decision makers to more quickly address the administrative and procedural fairness issues and provide a consistent approach across the agency.