Chapter 5: Options for managing lower-risk behaviours
5.1. Management action may be considered where agencies have assessed an employee’s behaviour to be less serious, or to pose a lower risk to public confidence in the APS.
5.2. Agencies should empower managers to address lower-risk matters constructively, and as informally as practicable.
5.3. Agencies should ensure a clear distinction is drawn between a formal misconduct process and remedial or management action of the kinds set out below. Care should be taken to ensure the employee understands that they are not subject to a misconduct process and are not taken to have breached the Code.
5.4. In some cases, management action may not satisfactorily resolve concerns about an employee’s conduct—or the employee may repeat the behaviour. It may be necessary in such cases to consider misconduct action on the basis that a pattern of suspected misconduct may be developing, even if the initial incident was relatively minor.
5.5. Counselling is a discussion with an employee that brings to their attention concerns about their behaviour, reminds them of their obligations, makes a plan for avoiding recurrence, and advises them of action that may be taken should the conduct continue. Care should be taken to avoid expressing a view that the employee has breached or is suspected of breaching the Code. Counselling should be framed as an opportunity to improve or change behaviour, rather than as a punishment.
5.6. Effective counselling is more of a conversation than a lecture—employees are more likely to change their behaviour if they feel they have been heard, and have taken an active part in planning how they will behave differently in the future. An interactive approach to counselling also helps ensure the employee feels safe to ask questions or seek clarification, and feels supported in making the needed changes.
5.7. Counselling may take the form of a single conversation about expected behaviours, but could also include a follow-up with the employee to check their understanding over the longer term and facilitate reflection.
5.8. Who is best placed to counsel the employee will depend on the circumstances. In most cases, it would be appropriate for the employee’s manager to take this role, as part of the ongoing management and development of their staff; however, in some cases this may not be suitable—for example, if there is an interpersonal issue between the manager and employee. In such cases the manager might reasonably be perceived to be unable to deliver the required feedback impartially, and the role should be given to someone in the agency who will be viewed as objective—such as a manager once removed, or a representative of HR.
5.9. Where a concern about an employee’s behaviour is relatively low risk, action can be taken under the agency’s performance management framework. In some cases, a formal underperformance process will be warranted; in others, depending on the issues identified, close supervision may be sufficient—or any of the strategies below may be put in place.
5.10. When taking action under their performance management framework, agencies should ensure that the employee’s performance agreement has clearly articulated the behaviours expected of them; that the appropriate procedures are followed; and that the assessment of the employee’s behaviour and performance is evidence-based.
5.11. When using the strategies below to remedy a shortfall in expected behaviours, care should be taken not to presuppose a breach of the Code, or to frame the strategies as misconduct action.
Learning and development
5.12. In some cases, a failure to meet expectations may indicate a gap in an employee’s knowledge or skill. Remediating gaps of this kind should generally form part of an agency’s performance management framework.
5.13. Learning and development is not limited to formal training, though this can be useful in addressing specific skill or information gaps. Such training programs should be supplemented with on-the-job training, self-directed learning, and ongoing development work supported by the employee’s manager, in order to integrate the employee’s learning into their role and check their understanding and development over the longer term. These supplementary strategies can also be used as alternatives to formal training programs.
5.14. Learning and development can relate not only to technical knowledge or skills, but also to interpersonal capabilities, such as having difficult conversations, representing the agency effectively in meetings or presentations, or working productively with others.
5.15. A gap in an individual’s knowledge may also reveal the need for further training and development for a team or work group as a whole to ensure that everyone can meet expectations going forward. It may also indicate systemic issues that need to be addressed within a work area or across the agency.
Coaching or mentoring
5.16. Coaching and mentoring are more targeted development tools that can help employees meet expectations, and can support them over the longer term to demonstrate the required skills and attributes.
5.17. Coaching is a time-limited, case-specific intervention that provides an employee with intensive support in a specific area of skill or knowledge. This may be more suitable than a one-off training program in cases where, for example, the skill is more complex, or where the employee’s duties have changed significantly, and where the employee has demonstrated willingness to improve. Like training, coaching should be supplemented by on-the-job opportunities to test and demonstrate learning, and can be used to address both technical and interpersonal skill gaps.
5.18. Mentoring is an ongoing relationship that seeks to develop an employee as a professional over the longer term. Unlike coaching, which seeks to remedy a skill deficit or develop an employee in a specific area, mentoring can help an employee reflect on and crystallise their career goals, their skills and areas for development, and ways they can identify and overcome any professional or personal barriers to achieving goals. Mentoring may be useful where, for example, a behavioural concern is in the area of management style or supervision skills, or managing time or competing priorities.
Alternative dispute resolution
5.19. Alternative dispute resolution (ADR) is a relatively informal, though structured, approach to managing interpersonal disputes. It encompasses a range of processes in which an impartial person assists those in dispute to resolve the issues between them.
5.20. ADR is generally a collaborative process between the parties, aimed at understanding one another’s point of view and building or restoring a functional, productive working relationship. ADR can range from a relatively informal conversation between the parties to a more structured intervention.
5.21. Mediation is generally a voluntary process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify issues, consider alternatives, develop options, and endeavour to reach agreement. The mediator has no advisory or determinative role regarding the content or outcome of the dispute, but may advise on the process for resolving it. Mediation is usually conducted in private, and the outcomes are confidential to the parties to the mediation.
5.22. Workplace conferencing brings a group of colleagues together with a neutral and qualified facilitator in situations where there is conflict in the workplace or past disputes that have not been adequately resolved. The intention of the conference is to enable everyone affected by the dispute to consider what happened, the impact it has had, and the best way forward to resolve the issue.
5.23. Conciliation is a process in which the parties, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives, and endeavour to reach agreement. A conciliator may provide advice on the matters in dispute, or options for resolution, but does not make a determination. The conciliator is responsible for managing the conciliation process.
Factors to consider
5.24. ADR is most suitable where the parties are genuinely willing to work on building or restoring the relationship, and to approach one another and the process respectfully and in good faith. Agencies should consider whether all parties feel safe to communicate their point of view and their needs, and have demonstrated an interest in working together safely and productively. As such, agencies should think carefully about directing an employee to participate in ADR, especially if there is a power imbalance between the parties.
5.25. Where an interpersonal dispute has affected the broader workplace, agencies should also consider whether further restorative action may be needed—for example, with the parties’ consent, letting their team or work group know ADR is taking place and that the employees are committed to working together more harmoniously; or conducting a facilitated discussion in the team or work group with a view to hearing and addressing concerns respectfully.
Warnings and directions
5.26. A warning or direction may be used on its own, in conjunction with any of the above strategies, or after implementing one or more strategies where behaviour has not improved. If an agency is seeking to respond to an employee’s behaviour with a warning or direction, consideration should be given to counselling the employee as well, if this has not been done already. This can help the employee understand why they need to change their behaviour, as well as bringing to light any underlying issues that need specific intervention.
5.27. A warning or direction can be used where the employee appears to understand the seriousness of the matter and the consequences of repeating the behaviour, and where it is reasonably likely that they will change their behaviour as a result.
5.28. Care should be taken to ensure the wording of a warning or a direction does not presuppose a breach of the Code.
5.29. A warning is a statement to an employee that they are required to adhere to standards of conduct that may include demonstrating or refraining from specific types of behaviour, and that specific consequences will attach to a failure to do so (usually, but not always, misconduct action—alternatives may include, for example, a formal underperformance process if this is more appropriate). Warnings are consistent with the Commissioner’s Directions relating to effective performance, and to the requirement under the ‘Ethical’ Value to deal with inappropriate behaviour fairly and effectively.
5.30. As a matter of good practice, a written warning should be accompanied by a conversation with the employee to ensure they understand its purpose and the consequences of failing to comply. In the event that a verbal warning is given in the first instance, a written record should be made and a copy provided to the employee.
5.31. An agency may wish to direct an employee to do, or to refrain from doing, a specific thing. Under s.13(5) of the PS Act, the Code requires employees to comply with a lawful and reasonable direction given by someone in their agency who has the authority to give the direction. A failure to comply with a direction can be considered as a potential breach of the Code in itself.
5.32. An agency may issue a direction to an employee if, for example, there is a specific behavioural change that the employee needs to make, and the agency has formed the view that misconduct action would not be proportionate or appropriate in the circumstances.
5.33. To meet the requirements of s.13(5), a direction must fulfil three criteria: it must be lawful; it must be reasonable; and it must be given by someone with the appropriate authority.
A direction to an APS employee can be lawful if it does not involve any illegality and is consistent with the legitimate interests or obligations of the Commonwealth as an employer. A lawful direction also would not undermine an employee’s statutory rights, including the right to seek a review of action under s.33 of the PS Act, or to make a disclosure under the PID Act.
Whether a direction is reasonable or not will always depend on all the circumstances—however, as a general principle, a reasonable direction is one that helps maintain public confidence in the integrity of the APS. A reasonable direction has a connection with APS employment, and is also likely to be clear, specific, and capable of being followed.
- Person with authority
Agency heads are not required under the PS Act to provide an express authorisation or delegation to give a direction. There is an implied authority for managers to give directions to the employees they manage, and for employees with responsibility in an area to give directions on matters relating to their field of responsibility.
5.34. Agencies are encouraged to seek legal advice if in doubt as to whether a particular direction meets these criteria.
Drafting and scope
5.35. Directions should be drafted in the language of command, and impose a clear and specific obligation. A poorly worded direction can make it difficult both for the employee to follow and for the agency to establish whether the employee has complied with it. Agencies should also ensure the wording of a direction does not presuppose a breach of the Code.
5.36. APS employees’ obligations to uphold the Values and Employment Principles, and to comply with the Code, are prescribed in legislation, and a direction that duplicates these requirements has no additional force. A direction must be consistent with the Code (in order to be ‘lawful’), but is effectively futile if it is a restatement of existing requirements.
5.37. When issuing a direction to an employee, agencies should advise the employee of the consequences of not following the direction. It is good practice also to inform them of their review rights consistent with s.33 of the PS Act, and of relevant agency policies and processes.
Changing employee’s role or duties
5.38. In some cases, it may be beneficial for an employee whose conduct has not met expectations to move to a different role in the agency. This option could be considered, for example, where interpersonal relationships have deteriorated to the extent that the employee can no longer work productively or harmoniously in their team, or where a role requiring a different skill set would enable the employee to perform more effectively. This is consistent with an agency head’s power to assign duties under s.25 of the PS Act.
5.39. A decision to change an employee’s role or duties should not be taken to presuppose that the employee has breached the Code or used as a punishment or de facto sanction.
5.40. Where managers take any of the approaches set out above, it is advisable that the key discussions and outcomes be documented. At a minimum, a short note should be prepared recording the content of any relevant meeting, particularly where agreement is reached on the remedial action, if any, to be taken. The note should preferably be signed by both the employee and the manager, with copies being retained by both parties. The agency copy should be retained in accordance with agency policy. Notes concerning any follow-up discussions or counselling should also be prepared, agreed, and retained.
5.41. Care should also be taken to ensure that any written records to employees about remedial, management, or corrective action avoids referencing more serious action (such as an investigation) and instead encourages the employee to take responsibility in correcting the behaviour and meeting the expectations set for them.
5.42. The employee should be informed that where conduct is maintained at a satisfactory level, the records relating to counselling or other action will be destroyed in accordance with agency policies, and that the records will only be relied on if further allegations of misconduct arise during the document retention period specified in the agency policy.