Fact sheet: Changes in role, assigning different duties, and suspension
Agencies should consider whether it is appropriate for the person under investigation to remain in their current role, or in the workplace, while the misconduct process takes place.
Decision-makers in these matters should not prejudge, or be seen to prejudge, the outcome of the misconduct action. At this stage, the relevant measures are precautionary, aimed at protecting the interests and reputation of the agency, the public interest, and the interests of other employees, including the complainant or witnesses. In some cases, these decisions will also be made in the interests of the person under investigation. They are not to be used as a punitive tactic, or as a de facto sanction.
Decisions about these measures may be made at the same time as a decision to start misconduct action, or at any stage during the misconduct process if there are further developments—for example, concerns raised by other employees, repetition of the behaviour, or new allegations coming to light during the investigation.
Decisions about the role or presence in the workplace of the person under investigation during the misconduct process should have regard to the nature and severity of the specific risks, and should be proportionate to these risks.
If it is not possible to mitigate the risks in a given case through measures that would enable the person under investigation to remain at work, agencies may consider suspending the person from duty.
Assigning different duties
An agency may decide that it is appropriate to assign different duties to the person under investigation, either for a temporary period or on an ongoing basis. The power to do so is the general assignment of duties power in s.25 of the Public Service Act 1999 (PS Act).
In order to ensure that all relevant facts are considered before making a decision to assign different duties, agencies should notify the person under investigation of the proposal and seek their views. Sometimes urgent action may be required that will not allow for that opportunity. In such cases, it would be appropriate to invite the person to comment after the decision has been made. Depending on their response, the agency has the flexibility to consider alternative arrangements, including suspension.
Employees who are assigned to different duties are not entitled to seek review of the decision under s.33 of the PS Act unless it involves relocation to another place, or assignment of duties that the employee cannot reasonably be expected to perform.
Where other options cannot mitigate the risks posed by the person under investigation remaining in the workplace, it is open to the agency to consider suspending them from duty.
The starting point for considering whether to suspend an employee is whether the agency head (or delegate) believes on reasonable grounds that the employee may have breached the APS Code of Conduct (Code), and that suspension is in the public interest or the agency’s interest.
It may be in the public or the agency’s interest to suspend an employee from duty where their continued presence in the workplace poses risks to, for example:
- the safety and wellbeing of other employees or members of the public, including agency clients
- the integrity of data held by the agency, including data about members of the public
- the integrity of Commonwealth resources, including the public revenue—for example, where the allegations relate to fraud or misappropriation
- public confidence in the agency or the APS as a whole, including where the allegations may undermine public confidence in the agency’s capacity to perform its functions.
Agencies may also wish to consider suspension where the alleged misconduct is serious—especially if there is a risk that the conduct may be repeated—or where there is a real risk of the investigation being compromised by the presence in the workplace of the person under investigation, and the risk cannot be mitigated in other ways.