Part II: Steps and processes involved in reporting and managing suspected misconduct
4. Reporting suspected misconduct
4.1 Obligation to report misconduct
4.1.1 APS employees have a responsibility to report misconduct, and not to turn a blind eye to unacceptable behaviour. How they should report misconduct will depend on the circumstances. More serious misconduct should normally be reported and dealt with in a more serious and more formal way. In some cases, especially those involving relatively minor matters, it may be most appropriate to raise the matter directly with the employee concerned in the first instance. This will be a matter of judgement. If in doubt employees should discuss the matter with their manager or someone in authority in their agency.
4.1.2 The APS Values, APS Employment Principles, and the APS Code of Conduct (the Code), in the Public Service Act 1999 (PS Act), set out standards and behaviours that are required of APS employees and agency heads. The APS Values require all APS employees to demonstrate leadership, be trustworthy and act with integrity (APS Values 10(2)). The Code requires APS employees, at all times, to behave in a way that upholds the integrity and good reputation of the employee's agency and the APS, as well as to comply with any lawful and reasonable direction given by their agency.
4.1.3 The Australian Public Service Commissioner's Directions 2016 (Directions) require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code.
4.1.4 Employees may also have reporting obligations under their agency's fraud control guidelines and other agency instructions. An agency's arrangements under the Work Health and Safety Act 2011 may require employees to report safety issues or hazards including workplace bullying.
4.2 Options for reporting misconduct
4.2.1 Agencies are encouraged to be proactive in providing mechanisms for both the public and employees to report suspected misconduct and promote any arrangements that are in place. Having effective processes in place for reporting of suspected misconduct contributes to the integrity of the APS.
4.2.2 Agencies may have more than one way for their employees to report suspected misconduct because of the complexity of their operations or to manage particular types of suspected misconduct. Employees may be more comfortable reporting concerns if they can do so relatively informally and have the option of discussing their concerns with the person to whom they are reporting.
4.2.3 Options for reporting suspected misconduct can include reporting to
- line managers18
- central conduct or ethics units
- nominated people in human resource areas including employee advice or counselling units or hotlines, fraud prevention and control units and hotlines
- email reporting addresses
- 'authorised officers' who receive public interest disclosures.19
4.2.4 If agencies make use of several avenues for reporting suspected misconduct, it is important that a central record is kept. This allows monitoring of trends and easy provision of consolidated data for the Australian Public Service Commission's annual State of the Service Report. Under s44(3) of the PS Act agencies must give the Australian Public Service Commissioner (the Commissioner) whatever information the Commissioner requires for the purposes of preparing the annual State of the Service Report. To date the Commissioner has routinely requested information about the number and nature of misconduct investigations. Further information about record keeping is available in Part III, Section 8 Record keeping and access to recordsof this guide.
4.2.5 Managers have an important role in encouraging and supporting staff who are considering reporting suspected misconduct. Research has indicated that it is managers' behaviour in the workplace and the culture they promote, as much as legislative and organisational systems, which determine whether conscientious staff speak-up.20 It is good practice for agencies to undertake periodic training and awareness raising activities so that employees and managers understand their responsibilities, and the relevant agency processes, in reporting and dealing with misconduct.
4.2.6 Some allegations of misconduct may be misconceived and without substance or may have been made vexatiously. Where an agency has concerns about the way, and circumstances, in which a particular employee has reported misconduct, it may be appropriate to advise the employee that making a frivolous or vexatious report of misconduct may in itself represent a breach of the Code.21
Agency responsibilities under the Public Interest Disclosure Act 2013
4.2.1 Agency heads have responsibilities under the PID Act to develop policies and procedures for dealing with public interest disclosures. Such disclosures may include allegations of misconduct of employees. Further information on the PID scheme can be found at the Commonwealth Ombudsman's website at www.ombudsman.gov.au/pages/pid and at Appendix 3 Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act.
4.3 Protections for employees reporting or witnessing misconduct
Anonymity, confidentiality and protection from retribution
4.3.1 Some employees may be concerned that they will be victimised, or discriminated against, for reporting suspected misconduct. For this reason, they may make reports anonymously or request that their identity is kept confidential.
4.3.2 Agency guidance material should advise employees that they may make reports anonymously but also provide assurance that employees who report in good faith will be protected from victimisation and discrimination.
4.3.3 Extra care needs to be taken when managing concerns about the identity of the person reporting misconduct when a misconduct investigation arises from a public interest disclosure made under the PID Act. The PID Act makes it an offence to disclose the identity of the discloser, unless the information is used for the purposes of the PID Act or taking action in response to a disclosure investigation. Further information about the handling of misconduct arising from a disclosure under the PID Act is available in Appendix 3 to this guide.
4.3.4 Employees who report suspected misconduct outside the PID Act are legally protected from discrimination or victimisation. Retaliatory action taken against someone who in good faith has reported suspected misconduct could be a potential breach of a number of elements of the Code, including the requirements to:
- behave with integrity in connection with employment
- comply with all applicable Australian laws
- treat everyone with respect, courtesy and without harassment.
4.3.5 In general, these protections also extend to witnesses in misconduct cases.
4.3.6 It is often necessary to reveal the identity of the complainant or a witness in order to provide the person under investigation with the information they need to respond fully to the allegations. Even if the agency considers that it is not necessary to reveal identities of complainants and witnesses during the course of its own investigation, the identities may be revealed on review by the Merit Protection Commissioner, the Fair Work Commission, in related criminal proceedings, or in the context of a legal challenge to the decision.
4.3.7 Accordingly, it is advisable for agencies to notify employees who report suspected misconduct, or provide witness statements, that the agency will seek to keep their identity confidential as far as possible but cannot give any guarantee of confidentiality.
4.3.8 In the majority of cases, complainants and witnesses do not face a serious risk of harm from reporting misconduct. Nonetheless, employees and witnesses may feel more confident about providing evidence in misconduct processes if they are assured that an assessment has been undertaken of the risk of retaliatory action, or other adverse outcomes, and that the agency has taken steps to put mitigation strategies into place. Agencies are advised to consider the risks in each case and develop strategies to remove or mitigate those risks, as appropriate.
4.3.9 Mitigation strategies need to be proportionate to the level of risk identified, and may include, but are not limited to:
- directing employees who are suspected of misconduct with respect to their behaviour towards the complainant and witnesses, including not entering into discussions about the incident/s with the complainant or other witnesses
- arranging for the employee suspected of misconduct to be temporarily assigned duties in another location while ensuring that there is no presumption of prejudging the matter
- assigning the reporting employee or witness other appropriate duties in another location
- developing and implementing a specially tailored protection plan in circumstances where there is a real risk to the physical security of employees, their families or property
- taking steps to ensure the fairness of employment decision-making affecting the complainant or witnesses, such as appointing an independent member to the selection committee for any selection exercise in which they are a candidate.
4.3.10 Agencies may wish to advise employees who believe they have witnessed misconduct to:
- make notes about what they have seen or heard
- keep any relevant documents and not make any written annotations on them
- report the matter through the appropriate channels but otherwise keep it confidential.
4.4 Key points for agency guidance material
4.4.1 Agency guidance material could include information drawn from this section on:
- encouraging employees to report suspected misconduct as part of their duty as an APS employee
- the different options available to employees to report misconduct including agency PID procedures
- confidentiality and protection from retribution, including the circumstances where confidentiality may limit agency action, advice relating to risk assessment and mitigation strategies that may be available and protection of disclosers required under the PID Act
- managing the expectations of the parties involved, including the employee making a report of misconduct and witnesses, about privacy issues in particular the use and disclosure of their personal information
- the obligations of managers to ensure that employees who report suspected misconduct are treated appropriately following making their report
- retaining and make records of evidence.
5. Considering a report of suspected misconduct
5.1 Relationship between misconduct and performance management processes
5.1.1 Employee behaviour considered inconsistent with the Australian Public Service (APS) Code of Conduct (the Code) can vary from serious matters, for example, large scale fraud, theft, misusing clients' personal information, sexual harassment and leaking classified information to relatively minor matters, such as a single, uncharacteristic angry outburst.
5.1.2 Not all suspected misconduct needs to be dealt with under an agency's s15(3) procedures. Other approaches such as performance management, counselling, or alternative dispute resolution, such as mediation, may be the most effective way to address behaviour that is minor misconduct.
5.1.3 When considering concerns about an employee's behaviour that relate both to the employee's effective performance and to suspected breaches of the Code, section 40 of the Australian Public Service Commissioner's Directions 2016 (the Directions) requires agency heads to have regard to any relevant standards and guidance issued by the Australian Public Service Commissioner (the Commissioner) before initiating an investigation under the agency's s15(3) procedures.
5.1.4 The material at paragraphs 5.1.5 to 5.1.9 below provides the standards and guidance referred to in section 40 of the Directions.
5.1.5 The purpose of the Code is to set out the minimum behavioural standards required of APS employees. Taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the agency and the APS and thereby maintaining public confidence in public administration. Rather than seeking to punish the employee, an aim of misconduct action is to maintain proper standards of conduct by APS employees and protect the reputation of the APS.
5.1.6 Performance management arrangements also provide an appropriate mechanism for dealing with some forms of unacceptable workplace behaviour. Good management practice would be to consider whether the suspected misconduct could be better dealt with under the agency's performance management framework before deciding whether to start a misconduct investigation.
5.1.7 Misconduct action is not a substitute for managing challenging behaviours that are more appropriately managed as unsatisfactory performance. Taking misconduct action for relatively minor matters can have the effect of undermining the integrity of the conduct framework.
5.1.8. The decision about which approach to use needs to be considered carefully on the facts of each case having regard to the following:
- How serious is the suspected behaviour? What is the potential impact on public confidence in the integrity of the agency and the APS?
As a general rule, the more serious the alleged behaviour or the greater the potential impact on public confidence in the integrity of the agency and the APS, the more appropriate it is to use misconduct processes.
- How likely is it that the employee would respond constructively to action under an agency's performance management framework?
Where an employee has shown, through their behaviour, that they are unlikely to respond constructively to action under the performance management framework, misconduct action may be the most effective way of dealing with the matter.
- To what extent is the suspected behaviour within the control of the employee?
Unacceptable behaviour by an employee that is within their control, for example wilful refusal to follow lawful and reasonable directions, or a blatant disregard for expected behavioural standards could generally be dealt with as a potential breach of the Code. Behaviour that is either accidental or is a result of a lack of capability on the employee's part is often better dealt with through other processes.
5.1.9 In all cases it is important that an apparent breach of the Code be addressed in some way and a record made of any action taken and the reasons for it. Minor unacceptable behaviour, if unaddressed, may be repeated or may escalate to more serious behaviour.
5.1.10 At Appendix 7 is a checklist on Initial consideration of suspected misconductto assist agencies.
5.2 Suspected misconduct and underlying medical conditions
5.2.1 All employees are required to comply with the Code regardless of mental or physical incapacity. The ability to comply with the Code is an inherent requirement for employment in the APS.
5.2.2 In some cases unacceptable behaviour may appear to be the result of an underlying medical condition. In such cases, agencies are advised to consider seeking medical opinion to establish whether there is a causal link between the behaviour and the employee's health.22
5.2.3 While mental illness or physical incapacity does not usually determine whether or not behaviour would be investigated as suspected misconduct, it may be a mitigating factor in deciding the severity of any sanction imposed for a breach of the Code.
5.3 Suspected misconduct of former APS employees
5.3.1 In July 2013 the Public Service Act 1999 (PS Act) was amended to make specific provision for agencies to continue, or initiate, inquiries into suspected misconduct by former APS employees.23 It is only possible to initiate misconduct action against a former employee who left the APS on or after 1 July 2013.24
5.3.2 In deciding whether to start an investigation once an employee has left the APS, or to continue an investigation once an employee resigns, the following matters could be considered.
- Whether it would be possible to give the former employee a fair hearing, including a reasonable opportunity to answer the case against them.
- Factors to consider include the passage of time since the incident(s) and any constraints on the former employee accessing records in order to be able to respond effectively to the allegations.
- Agencies may need to consider whether to provide a former employee with supervised access to agency premises or resources in order to identify relevant records.
- The risks of not undertaking an investigation, such as damage to the reputation of the agency or APS, or the message not pursuing the matter would send to other employees or the community about the seriousness with which the agency responds to integrity concerns
- The costs associated with any investigation
- The availability of, and ability to collect, evidence.
5.3.3 A former employee is not obliged to cooperate with an investigation and an agency head has no power to direct the former employee to provide information or attend interviews. Where attempts to contact a former employee by telephone, email or by registered mail have failed, an agency may be satisfied that reasonable attempts have been made to inform the former employee of the allegations and continue the investigation.
5.3.4 A former employee may be motivated to cooperate in an investigation because of the impact an adverse outcome could have on their reputation or employability.
5.3.5 Former employees found to have breached the Code have the right to seek review by the Merit Protection Commissioner of that determination. 25
5.3.6 While a breach decision-maker may make a determination that a former employee has breached the Code, the agency head has no power to impose a sanction on the former employee.
5.3.7 Some employees subject to allegations of a breach of the Code separate from the APS before their agency has completed a Code investigation. If the agency does not proceed to determine whether a breach of the Code has occurred, it is open to those employees to claim subsequently, if asked by a new employer, that they have not been the subject of a determination. They cannot claim, however, not to have been the subject of allegations that they had breached the Code and an investigation. While minor breaches of the Code may not be of consequence for future employment, serious misconduct may be a matter for consideration in pre-employment checks by the new employer. For further information on privacy matters and the information one APS agency may disclose to another agency see Part II, Sections 2.3 and Part III, Section 8 of this guide.
5.4 Public Interest Disclosures and misconduct investigations
5.4.1 Suspected misconduct could be identified through a disclosure made in accordance with the Public Interest Disclosure Act 2013 (PID Act) either directly to an authorised officer or through a supervisor or manager. Further advice on the PID Act can be found at www.ombudsman.gov.au/pages/pid/. Appendix 3 Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act provides some advice on the management of disclosures that may also be a suspected breach of the Code.
5.4.2 Each agency must treat disclosures made under the PID Act in accordance with the provisions of that Act.
5.5 Consistency of approach to handling suspected misconduct
5.5.1 Consistent messages about the agency's views on various types of misconduct assists employees to understand the behaviour that is expected of them. APS agencies will take different approaches to some types of misconduct because of the different risks posed by each agency's operating environment. However, differential treatment of employees for similar misconduct within an agency has been considered to indicate unfairness in the context of unfair dismissal claims in the Fair Work Commission. The Merit Protection Commissioner may also take this into consideration when reviewing agency decisions on sanction.
5.5.2 Inconsistent approaches may arise within an agency if managers are unaware of the agency's views on the seriousness of certain types of misconduct. One of the most effective ways of helping managers to make consistent and appropriate decisions is to provide guidance, illustrated with practical examples, about the factors to take into account when deciding whether to deal with the suspected misconduct through the agency's s15(3) procedures or through alternative methods.
5.5.3 Inconsistencies may also arise where there is devolved decision-making and a large number of people holding authorisations and delegations. Consistency in decision is likely to be assisted by ensuring that managers with the appropriate level of seniority are authorised to make decisions about certain types of misconduct.
5.6 Misconduct action—preliminary investigations
5.6.1 A preliminary investigation may indicate that, although there may be some substance to an allegation, it is not a matter best dealt with under an agency's s15(3) procedures. This could occur if the alleged behaviour is better addressed through the performance management framework.
5.6.2 Preliminary investigations may also indicate there would be little utility in proceeding to a s15(3) investigation. This can occur for a range of reasons including insufficient evidence to be able to reach a concluded view that misconduct had occurred.
5.6.3 The timing of an investigation is another factor to consider. For example where a matter is also under investigation as a possible criminal offence, moving to a s15(3) investigation too early can alert the person suspected of misconduct, prejudicing the capacity of the criminal investigation to gather evidence. To minimise the prospect of the destruction or removal of evidence, some agencies complete information gathering, as far as reasonably practicable, before the person suspected of misconduct is advised that they may be under any suspicion. For further information see Part I, Section 3.7 Suspected misconduct that may also be a criminal act.
5.6.4 While as a matter of good practice, agencies should aim to keep the preliminary investigative phase short, this is not always possible. Some agencies prefer to gather a large amount of evidence before invoking their s15(3) procedures. In these cases, the agency may advise the person suspected of misconduct during the preliminary phase that a matter concerning their conduct has arisen, and is being examined, and that they will be given an opportunity to respond at a later date.
5.6.5 Generally, agencies prefer to advise an employee suspected of misconduct earlier, rather than later, to avoid the undesirable situation of the employee discovering unofficially that an investigation is underway.
5.6.6 In serious cases where any delay in acting on suspected misconduct raises a real risk to the safety of employees or clients, or that evidence may be destroyed, it is advisable to start an investigation, in accordance with the agency's s15(3) procedures, as quickly as possible. Prompt consideration may need to be given to suspending the employee from duty or assigning them to other duties—see Part II, Section 5.8 Deciding whether to reassign duties or suspend the employee of this guide.
5.7 Alternatives for addressing behavioural concerns
5.7.1 Options available to agencies if it is decided to address allegations about behaviour through means other than misconduct action include:
- through the performance management framework, for example, by clarifying performance expectations regarding behaviour in performance plans
- by providing training or coaching for the employee
- by monitoring and guiding the employee about appropriate behaviour, for example, as part of performance management discussions
- by counselling, particularly where the concern relates to a single incident
- by assigning new duties. Care needs to be taken to ensure that this is not perceived as a de facto sanction imposed without a proper process
- by determining if there are health issues that may be impacting on the employee's performance and putting in place appropriate management actions as a consequence26
- by using alternative dispute resolution such as mediation, conciliation or group conferencing to assist in resolving interpersonal disputes.27
Records of employee discussions
5.7.2 Where an alternative to misconduct action is taken a record should be made of key discussions and outcomes. This is particularly important where an employee is counselled that particular conduct is unacceptable and remedial action undertaken. It is good practice to share that record with the employee and to record any comments made by the employee. These records, and records of any follow-up discussions or counselling, should be filed in accordance with agency policy.
5.7.3 Employees should also be informed that records of counselling may be relied on in handling future allegations of misconduct. It may be appropriate to inform the employee of the agency's policy relating to the retention and destruction of such records. See also Part III, Section 8 Recordkeeping and access to records of this guide.
Where conduct does not improve or deteriorates
5.7.4 Alternative measures may not satisfactorily resolve concerns about an employee's conduct and the employee may repeat behaviours of concern. It may be necessary to take misconduct action under the agency's s15(3) procedures on the basis that a pattern of suspected misconduct may be developing. This may be the case even though the initial incident was relatively minor.
5.8 Deciding whether to reassign duties or suspend the employee
5.8.1 Action to reassign duties temporarily, or to suspend from duty, may be made at the same time as the decision to start action under an agency's s15(3) procedures, or at any stage during the process of determining whether a breach of the Code has occurred. It may be necessary to reassign an employee's duties or to suspend the employee during the misconduct investigation as a result of a further development e.g. concerns of other staff, repetition of the behaviour, or new allegations come to light during the investigation.
5.8.2 In exercising these powers, the decision-maker should not prejudge, or be seen to prejudge, the outcome of the misconduct action. Although an employee may be reassigned duties before a determination that a breach of the Code is made, it will be for operational reasons and is not to be used as a punitive measure or a sanction. At this stage re-assignment of duties and suspension are precautionary measures aimed at protecting the interests of the agency and its reputation, the public interest and/or the interests of other employees, including the complainant or witnesses. In some cases, these decisions will also be made in the interests of the employee under investigation.
5.8.3 Agencies should be clear about who has the authority to take decisions regarding the re -assignment of duties or suspension from duty. It is preferable for this person not to have been involved in investigating the alleged breach of the Code or making a related determination. The person making the suspension or re-assignment decision must be given delegated authority to do so under the PS Act and Public Service Regulations 1999 (PS Regulations). A checklist designed to assist suspension decision-makers is at Appendix 8 of this guide.
Re-assignment of duties
5.8.4 The agency may decide that it is more appropriate to assign new duties to the employee for a temporary period as an alternative to suspension.28 The power to do so is the general assignment of duties power in s25 of the PS Act.
5.8.5 The factors to take into account are similar to those applying to the decision to suspend the employee—that is, the public interest and the agency's interests. The maintenance of a cohesive and effective workplace is a relevant consideration in relation to the re-assignment of duties. It may also be appropriate to have regard to the circumstances of the employee under investigation and in some cases the circumstances of their family e.g. would relocation to another region be appropriate.
5.8.6 In order to ensure that all relevant facts are considered before making a decision on re-assignment of duties, it is appropriate to notify the employee of the proposal and seek their views. Sometimes urgent action may be required that will not allow for that opportunity. In this case it would be appropriate to invite the employee to comment on the re-assignment after the decision has been made. Depending on the employee's response, the agency has the flexibility to consider alternative arrangements, including suspension from duty.
5.8.7 Employees who are assigned to different duties are not entitled to seek review of the re-assignment decision under s33 of the PS Act, unless the re-assignment involves relocation to another place or being assigned duties that the employee cannot reasonably be expected to perform.29
Legislative framework for suspension
5.8.8 Section 28 of the PS Act, and regulation 3.10 of the PS Regulations, set out the legislative basis for suspending an employee who is suspected of having breached the Code. In brief, the provisions are as follows.
- An employee may be suspended, with or without remuneration, where the agency head believes, on reasonable grounds, that the employee has, or may have, breached the Code and where the suspension is in the public interest, or the agency's interest (regulation 3.10(1), (2), and (3)).
- If the suspension is to be without remuneration, the period without remuneration is to be:
- not more than 30 days; or
- if exceptional circumstances apply—a longer period (regulation 3.10(3)).
- A suspension, with or without pay, must be reviewed at reasonable intervals (regulation 3.10(4)).
- A review of suspension under regulation 3.10 is not a review of the original suspension decision. It is a fresh decision as to whether the employee should be suspended.
- Suspension must end immediately if the agency head no longer believes, on reasonable grounds, that
- the employee has, or may have, breached the Code, or
- that it is in the public interest, or the agency's interest, to continue the suspension (regulation 3.10(5)).
- Suspension must end as soon as any sanction is imposed for the relevant breach of the Code (regulation 3.10(6)).
- In exercising suspension powers, the agency head must have due regard to procedural fairness unless, on reasonable grounds, they believe that it would not be appropriate to do so in the particular circumstances (regulation 3.10(7)).
5.8.9 The requirements in the regulations concerning review and revocation of suspension decisions mean that the suspension decision-maker must be informed of progress with the misconduct investigation. They need this information to ensure that they can properly review, at reasonable intervals, the decision to suspend the employee, or to revoke the suspension in the circumstances provided for in regulation 3.10(5) and 3.10(6).
When is it appropriate to suspend an APS employee?
5.8.10 The starting point for considering whether to suspend an employee suspected of breaching the Code is the public interest or the agency's interest. It may be in the public, and agency's interest, to suspend an employee from duty where their continued presence in the workplace poses risks to, for example:
- the safety and well-being of members of the public, including agency clients
- the integrity of data about members of the public held by the agency
- the public revenue
- public confidence in the agency or the APS as a whole.
5.8.11 In addition, it may be necessary to suspend an employee from duty where:
- there is a significant risk that an investigation of the allegation may be compromised by the employee's presence in the workplace
- the alleged misconduct is serious and there is a real risk that the conduct may be repeated
- the allegations may have impaired the public's confidence in the agency's capacity to perform its functions
- there is a risk to the safety of other employees
- it would be inappropriate for the employee to continue to perform their usual duties until the allegations are resolved, and assignment of other duties is not appropriate or cannot be accommodated.
Procedural fairness in relation to suspension
5.8.12 As set out above, regulation 3.10(7) requires a decision-maker when making a decision to suspend an employee, to have due regard to procedural fairness unless, on reasonable grounds, the decision-maker believes that it would not be appropriate to do so in the particular circumstances. Cases where the decision-maker decides not to have regard to procedural fairness are likely to be unusual. It may be appropriate where there is a need to act urgently due to safety concerns, or a risk that evidence will be destroyed, or where there is some other overriding public interest.
5.8.13 In most cases, however, decision-makers will be able to have due regard to procedural fairness. The usual practice is to:
- inform the employee suspected of misconduct, in writing, of the agency's preliminary intention to suspend and the reasons for this proposal, and
- give the employee a reasonable opportunity to respond before any decision to suspend is taken.
5.8.14 An employee who is suspended without first being given an opportunity to comment should be advised of the reasons for the suspension decision, and for proceeding without seeking the employee's comments, and invited to comment.
5.8.15 Upon receipt of the employee's comments, a review of the decision to suspend can promptly occur.
5.8.16 Advice to an employee about a suspension decision needs to be clear that the decision is not a prejudgement of whether the employee has breached the Code.
Suspension with or without remuneration
5.8.17 The suspension decision-maker is required to decide whether suspension from duties is with or without remuneration.
5.8.18 The term remuneration is not defined by the PS Act or PS Regulations but, in accordance with its ordinary meaning, includes:
- annual salary, excluding performance-based allowances, that would have been paid to the employee for the period they would otherwise have been on duty, including any approved higher duties allowances
- other salary-related payments, including those associated with the performance of extra duties, such as overtime but excluding overtime meal allowance, and shift penalty payments where there is a longstanding and regular pattern of extra duty or shift work being performed which would have been expected to continue but for the suspension from duty
- any other allowances of a regular or ongoing nature e.g. including cost reimbursement allowances such as a temporary accommodation allowance.
5.8.19 Factors to consider in making the suspension decision may include:
- the seriousness of the suspected misconduct—suspension without remuneration would usually be appropriate in cases where the sanction imposed might be termination of employment if the suspected misconduct is determined to be a breach of the Code
- obligations under s15 of the Public Governance, Performance and Accountability Act 2013with respect to the proper use and management of public resources. In the circumstances of the case, is it appropriate for the suspended employee to be remunerated if they are not working?
- whether suspension without remuneration would give the employee an added incentive to cooperate with the investigation
- the estimated duration of the misconduct action
- the likely financial hardship, if any, for the employee.
5.8.20 Under both the common law and the Administrative Decisions (Judicial Review) Act 1977, a decision-maker is required to take into account all relevant considerations and should not rely on irrelevant considerations in reaching a decision. A claim of financial hardship in the context of a 'suspension without remuneration' decision is a relevant consideration and needs to be considered by the decision-maker. The decision-maker can balance the severity of the suspected breach against the severity of the financial impact of the suspension. In some circumstances the hardship imposed may be disproportionate to the suspected breach. On the other hand, a suspected breach may be so serious that it outweighs claims of hardship.
5.8.21 The onus is on the employee to substantiate a claim of hardship, by providing persuasive evidence in support of their case. A decision-maker might not attach much weight to an assertion of hardship. However, a decision-maker may request further information about the nature of the hardship. For example, where an employee claims that their bank would take possession of their house, the decision-maker might seek a statement to this effect from the bank and/or a signed statutory declaration from the employee. The decision-maker might then attach greater weight to that consideration in reaching the decision.
5.8.22 A period of suspension without remuneration longer than 30 days is permitted only where there are exceptional circumstances. Exceptional circumstances are not defined in the legislation,30 but could include:
- where a strong prima facie case of serious misconduct is apparent
- in order to minimise any delay between a determination of breach and imposing a sanction, where a finding has been made of a serious breach of the Code
- where an employee has been charged with a criminal offence and is waiting to have the charge heard and determined
- where an employee has appealed against a criminal conviction and is waiting to have the appeal heard.
5.8.23 An employee who is not receiving remuneration may be able to access paid leave credits during suspension. This is at the discretion of the agency and dependent on the provisions of the relevant industrial instrument setting out terms and conditions of employment, and agency policies. Some agencies allow suspended employees to access accrued recreation or long service leave credits, but not personal leave. The rationale for drawing this distinction is that personal leave is generally available where an employee is prevented by illness or caring responsibilities from attending for duty. Providing personal leave for a period of suspension is usually inconsistent with the purpose of the leave.
5.8.24 An employee who is suspended may wish to seek outside employment while the suspension is in place. An agency's policies and procedures on outside employment would continue to apply, including whether any outside employment might create a possible conflict of interest with the employee's public service employment. A suspension with or without remuneration does not affect the employee's obligation to comply with agency policies, lawful and reasonable directions, or with the Code, more generally.
5.8.25 An agency may consider whether an employee who was suspended from duty and subsequently found not to have breached the Code, is able to seek compensation for any salary foregone, or leave credits taken, during the period of suspension. There is no express provision in the PS Act or Regulations allowing for salary to be paid in the event that an employee is found not to have breached the Code. However, section 73 of the PS Act provides a mechanism for the approval of payments to employees in 'special circumstances', and may provide the authority for any compensatory payment. Further information on the operation of section 73 is on the Commission's website.31
Recognition of service during suspension
5.8.26 Whether the period of suspension from duty of an employee counts as 'service' for purposes such as annual leave or long service leave, is dependent on the terms of legislation and any industrial instrument or contract that confers the entitlement to leave. This is the case whether the employee is suspended with or without remuneration. For example:
- Generally, it is considered that suspension from duty does not constitute a break in an employee's continuous employment as defined in s11(1) of the Long Service Leave (Commonwealth Employees) Act 1976. Periods of suspension, with or without pay, would therefore not affect an employee's long service leave entitlements.
- Whether a period of suspension counts as service for annual leave purposes is dependent on the employee's conditions of employment as provided for in an industrial agreement or supporting policies. If the conditions of employment do not exclude the accrual of annual leave during periods of suspension, the period of suspension, with or without remuneration, will generally count as service for annual leave accrual purposes.
5.8.27 It is advisable for agencies to inform the employee on suspension about the agency's policies on access to the workplace, entitlement to apply for jobs in the agency and other agencies, and attendance at training courses previously booked or approved.
Right of Review
5.8.28 Agency guidance to employees needs to be clear on the distinction between the right to have suspension from duty reviewed at regular intervals (regulation 3.10(4)) and the review of actions provisions in s33 of the PS Act. Review of suspension under regulation 3.10(4) has prospective effect. It examines whether an employee's suspension from duty is to continue from the time of the review decision. It does not involve a reconsideration of the original decision to suspend the employee.
5.8.29 A review of action under s33 of the PS Act, by contrast, involves re-examination of the original decision. It is good practice to advise the employee of their right to seek a review, under s33 of the PS Act, of the decision to suspend. See also Part III, Section 9, Review of Actions and other review optionsof this guide.
5.9 Key points for agency guidance material
5.9.1 Agency guidance material could include information drawn from this section about:
- the considerations relevant to a decision to deal with suspected misconduct under the agency's s15(3) procedures or through other action and who is responsible for making this decision
- the types of suspected misconduct that the agency considers would usually be handled under the agency's s15(3) procedures
- suspected misconduct and underlying medical conditions
- suspected misconduct and former employees
- disclosures of suspected misconduct made under the PID Act (see Appendix 3 Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act)
- the recordkeeping requirements for employee discussions/counselling sessions and what to do if the employee's conduct does not improve or deteriorates further
- procedures for managing suspension and assignment of duties, including
- circumstances in which an employee may be suspended, with or without remuneration, or assigned other duties under s25 of the PS Act
- responsibilities for decision-making
- review arrangements.
6. Investigative process
6.1 Selecting a decision-maker
6.1.1 Once it has been decided to start action under the agency's s15(3) procedures, the next step is to select the decision-maker who will determine whether there has been a breach of the Code of Conduct (the Code). An agency's s15(3) procedures may identify the classification/position of persons with authority to appoint the breach decision-maker and, if so, the breach decision-maker must be selected in accordance with the procedures. It is advisable for the breach decision-maker's appointment to be in writing.
6.1.2 The breach decision-maker is preferably someone relatively senior in the agency who is familiar with the agency's business and has good judgement.
6.1.3 The breach decision-maker may conduct the investigation themselves or use an investigator. Where the breach decision-maker is expected to manage their normal workload during the investigation, it may expedite the process to appoint a separate person to conduct the investigation. An investigator must be appointed in accordance with the agency's s15(3) procedures if the procedures have provisions for appointing an investigator. Where the procedures do not have such provisions, the investigator is selected outside the procedures as a person assisting the decision-maker.
6.1.4 The role of the investigator is to gather evidence, including interviewing witnesses, and to communicate with the person under investigation and witnesses. Subject to an agency's section 15(3) procedures, the investigator may provide the decision-maker with their own opinions about the facts of the case, and prepare a report with recommendations. However, the breach decision-maker needs to form an independent view of the evidence and is responsible for both making findings of fact and any determination of breach of the Code of Conduct which flows logically from those findings.
6.1.5 The respective roles and responsibilities of the investigator, decision-maker(s), and where relevant any human resources case manager, should be made clear in agency guidance material. Appendices 8-10 of this guide on Employee suspension checklist, Making a decision about a breach of the Australian Public Service Code of Conduct checklist, and Sanction decision-making checklist may be useful when developing agency guidance. Appendix 6 of this guide on Australian Public Service Code of Conduct: Tips and traps in selecting external investigators is also relevant.
Independent and unbiased decision-maker
6.1.6 The person who appoints the breach decision-maker needs to take reasonable steps to ensure that the decision-maker is, and appears to be, independent and unbiased. Administrative law requires that a decision-maker be free from actual bias or any reasonable apprehension of bias. The test for reasonable apprehension of bias is whether a hypothetical fair-minded person, properly informed of relevant circumstances, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the decision.32
6.1.7 Examples of where bias could, or could be thought to, arise are as follows:
- The decision-maker has a personal interest in the decision including for example a personal relationship or a close working relationship with the person suspected of misconduct, a complainant or witnesses.
- The decision-maker has previously expressed a concluded view on a matter that needs to be determined.
- The decision-maker has had access to prejudicial information, not relevant to the matters to be determined, but which could reasonably be seen as influencing the decision-maker's views.
- A senior manager makes comment on the case in a manner which could be perceived to influence the more junior decision-maker.
- The decision-maker is a witness in the matter.
6.1.8 Care needs to be taken if a breach decision-maker has previously investigated the matter, or a related matter, in another capacity. Consideration should be given to the nature of the previous involvement and the matters they were asked to consider. If there is any doubt about the suitability of a decision-maker, it would be prudent to make another choice. It may be appropriate for a person from outside the agency or the APS to be selected, if it is not possible to find a decision-maker 'free from apparent bias' within the agency.
6.1.9 It is recommended that the breach decision-maker not be informed that the person suspected of misconduct has previous findings of breaches of the Code, if that is the case. This allows the breach decision-maker to decide whether or not there has been misconduct solely on the evidence relating to the matter under investigation. Prior misconduct will be relevant if there is a decision to impose a sanction. See Part II, Section 7 The determination and sanctionof this guide.
6.2 Selecting an investigator
6.2.1 Agencies may find it useful to maintain a pool of employees who have experience or training in conducting workplace and misconduct investigations, and are familiar with administrative law principles.
6.2.2 Agencies may for a variety of reasons wish to engage an external person to conduct a misconduct investigation. Information on engaging an external investigator is in Appendix 6 Australian Public Service Code of Conduct: Tips and traps in selecting external investigators. The information in the appendix is relevant both to the engagement of contractors and the secondment of an APS employee from another agency to assist with an investigation.
6.2.3 Some cases of suspected misconduct are straightforward to investigate. However investigating suspected misconduct can be difficult and requires judgement, attention to detail and investigative skills. The choice of both the breach decision-maker and any investigator are important ones. Investigators and the breach decision-makers involved in more complex cases require training and/or experience in administrative investigations and administrative decision-making, and in the misconduct decision-making process.
Ensuring the quality of the investigation
6.2.4 Where an investigator is selected to assist the breach decision-maker, it is important that the investigator understands their role and the procedures with which the investigation must comply. An investigator plays an important role in ensuring the quality of any determination decision.
6.2.5 The breach decision-maker has ultimate responsibility for ensuring that the decision-making process adheres to administrative law requirements, including procedural fairness, and the agency's procedures. It is important for the breach decision-maker to be satisfied with the approach to, and quality of, the investigation, including:
- the quality and quantity of the evidence and whether or not the evidence establishes the facts on which any finding of misconduct is based
- the way the evidence has been collected
- that the agency's s15(3) procedures have been complied with and other legal requirements met, including procedural fairness.
6.3 Investigations of suspected fraud or other criminal behaviour
6.3.1 Where the matters under investigation include suspected criminal behaviour, agencies will need to consider referral to the Australian Federal Police (AFP) or other police forces as set out in Part II, Section 3.7 Suspected misconduct that may also be a criminal act of this guide
6.3.2 In cases of suspected fraud and other criminal behaviour, the person conducting the investigation must follow the agency's fraud control policy and procedures. These policy and procedures must be consistent with the Public Governance, Performance and Accountability Act 2013(PGPA Act) and the Commonwealth's Fraud Control Framework. The Department of the Attorney-General administers the Commonwealth's Fraud Control Framework which includes the Commonwealth Fraud Control Policy.33 The Commonwealth Fraud Control Policy supports agencies to discharge their responsibilities under the PGPA Actand the Fraud Control Rule made under that Act. Further information about the fraud control framework, including links to the legislation, is available on the Department of the Attorney-General's website.34
6.3.3 Consistent with the Commonwealth Fraud Control Policy, agency fraud investigations must meet the requirements set out in the Australian Government Investigation Standards (AGIS) which are administered by the Australian Federal Police. This includes competency standards for persons undertaking fraud investigations. 35
6.4 Advising that misconduct proceedings have started
6.4.1 Once the decision to start misconduct action has been taken, and the breach
decision-maker has been selected, the person suspected of misconduct should be advised at the earliest reasonable time of the decision to investigate, and of the person or persons selected to investigate and make the breach decision.
6.5 Deciding on the scope of the investigation
6.5.1 The scope of the investigation is determined by the preliminary judgements made about the allegations about the person's behaviour, whether or not all allegations need to be investigated and, if proven, which elements of the Code may have been breached.
6.5.2 The seriousness of the allegations, whether there is a reasonable possibility of identifying evidence that might prove or disprove the allegations, and the cost of gathering particular forms of evidence are some of the considerations in determining the scope of the investigation.
6.5.3 Agencies may provide general guidance to the breach decision-maker on which element(s) of the Code the person subject to misconduct action is suspected of breaching. However, the breach decision-maker needs to establish independently whether specific elements of the Code have been breached when making their decision.
6.5.4 There are two main approaches when considering which part of the Code to put to the person subject to misconduct action.
- A breach decision-maker may opt for multiple sections of the Code, depending upon the suspected misconduct, so that any final determination is more exhaustive.
- A decision-maker may choose one or two sections of the Code that are most relevant to the suspected misconduct.
6.5.5 It is advisable that the breach decision-maker is flexible at the start of the process about the approach. For example, if the suspected misconduct, if proven, is likely to lead to termination of employment, then selecting a larger but relevant number of elements may assist in defending an unfair dismissal application, should the Fair Work Commission not uphold some breaches of elements of the Code.
6.5.6 As the investigation progresses, the investigator or decision-maker may discover additional allegations and/or consider that the behaviours under investigation suggest additional elements of the Code may have been breached. In this circumstance, the person under investigation should be advised of the additional allegations and additional elements of the Code and be given a further opportunity to comment. This is consistent with the requirements in agency s15(3) procedures and the requirements of procedural fairness. Further information on procedural fairness requirements is provided in Part II, Section 6.10 Procedural requirementsof this guide.
6.6 Notifying the person under investigation of the misconduct action
6.6.1 Section 43 of the Australian Public Service Commissioner's Directions 2016 (the Directions) requires that a person suspected of misconduct be informed of certain matters before a determination is made. Many agencies do this in the form of a written 'notice of suspected misconduct'.
6.6.2 Any notice to the person suspected of misconduct must be consistent with the requirements in the agency's s15(3) procedures, which in turn must be consistent with section 43 of the Directions. Generally such a notice will explain:
- the behaviour the person is suspected of engaging in
- the element(s) of the Code they are suspected of breaching
- the full range of sanctions that may apply
- who will be investigating the suspected misconduct—if different from the decision-maker
- the decision-maker who will make the determination.
6.6.3 It is appropriate to attach to the notice advice about how the misconduct investigation process will proceed, a copy of the agency's s15(3) procedures and any relevant guidance material.
6.6.4 Consistent with the requirements of the Privacy Act 1988, consideration could be given to including a privacy collection notice in the notice of suspected misconduct. The purpose of the privacy collection notice is to advise the person under investigation that their personal information is being collected, the uses to which it will be put and the circumstances in which it will be disclosed. For further information see Part I, Section 2.3 Managing misconduct action consistent with privacy requirements of this guide.
6.6.5 The notice of suspected misconduct could be signed, physically or electronically, by the person who has authorised the misconduct action or the decision-maker or investigator, in accordance with the agency's s15(3) procedures, guidance or policies. A copy of this notice should be retained on the misconduct file.
6.6.6 It may not always be possible to give the person suspected of misconduct complete details of the suspected breach at the outset of an investigation. In such cases, it is appropriate to inform the person in writing that an investigation has started and to outline the allegations as they are known at the time. The person should be advised that they will be given further detail about the allegations as the investigation progresses and an opportunity to make a statement in relation to the allegations and evidence, once the evidence has been gathered and before any determination is made.
Variations to the notice
6.6.7 During the course of an investigation, an investigator or decision-maker may:
- identify additional allegations
- identify additional evidence
- consider that the alleged behaviour might be more appropriately considered against an additional, or different, element of the Code.
6.6.8 Any changes or new information of this sort should be notified to the person under investigation, consistent with the agency's s15(3) procedures. The decision-maker must give the person a reasonable opportunity to respond to this new information, consistent with the agency's s15(3) procedures, before making a determination.
6.7 Other administrative arrangements
6.7.1 Agencies may also advise persons suspected of misconduct of the support available to them. In the case of current employees, the employee's manager may be able to provide support. Current employees may also seek support from the agency's employee assistance program. Both former and current employees may seek advice from the Australian Public Service Commission's Ethics Advisory Service. Generally, employees or former employees are not entitled to assistance in meeting legal expenses incurred in relation to misconduct action. Paragraph 2A of Appendix E to the Legal Services Directions 2005 refers.
6.7.2 Other matters that an agency may need to consider are:
- how to manage the impact of the investigation on the workplace and colleagues of the employee under investigation
- whether the allegations point to business process or systemic risks that need addressing by the agency, for example improved financial control measures
- what action, if any, needs to be taken to protect the privacy of the employee under investigation and any witnesses, and the integrity and independence of the misconduct process, for example where the matters under investigation have been the subject of media comment or gossip in the workplace.
6.8 Investigating whether misconduct has occurred
Making arrangements to support the decision-making process
6.8.1 The outcome of misconduct action is heavily dependent on the quality of the investigation. Mistakes made in the investigation can lead to an unfair outcome and/or decisions being overturned on review. The person who undertakes the investigation, who may also be the breach decision-maker, needs to have the skills and resources to do the task effectively.
6.8.2 It may be necessary for an internal investigator, and/or decision-maker, to be released from some or all of their normal duties while they conduct the investigation to ensure a quality and timely process.
6.8.3 Agencies may also need to consider special accommodation arrangements, such as the provision of an office or a secure cabinet for storage of sensitive material. Investigators may also need access to agency or other experts to assist them in interpreting evidence or dealing with legal questions.
Formality and timeliness
6.8.4 The Directions stipulate that the process for determining whether an APS employee, or former 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. This means that the investigation needs to be conducted efficiently and effectively.
6.8.5 Ensuring timeliness is important for a number of reasons. Delays can affect the availability of reliable evidence, and the capacity of the person under investigation to respond fully to the case against them. For these reasons, among others, delays in investigations can reduce the possibility of reaching a concluded view on whether or not the person did what was alleged they had done. Unreasonable or extended delays in the investigation process, because of their effect on the person under investigation, can be a mitigating factor when deciding sanction. They are also factors that are likely to be considered by external review bodies.
6.8.6 While the process should be expeditious, this should not be at the expense of a properly conducted decision-making process consistent with agency s15(3) procedures, the requirements of procedural fairness or other administrative law principles.
Planning the investigation
6.8.7 It is good practice to develop an investigation plan which might consider the following issues:
- Who/what is being investigated?
- What needs to be found out in order to be able to make a supported and reasonable determination of whether there has been a breach?
- What evidence needs to be gathered and assessed in order to make findings and what are the potential difficulties in obtaining that evidence, if any?
- Who needs to be interviewed?
- How will the issue of confidentiality be handled in relation to the identity of the employee who reported the suspected misconduct or witnesses? This is particularly important if the allegation was made as a disclosure under the Public Interest Disclosure Act 2013.
- What are the privacy issues raised by this matter and what steps need to be taken to meet the agency's obligations under the Privacy Act 1988?
- Developing a timeline for the investigation.
- Whether legal advice is needed in a complex case.
Gathering the evidence
6.8.8 Evidence can be collected from various sources. For example in cases involving suspected improper access to personal information or improper use of email or internet, the investigation is likely to be founded on objective, physical evidence including records of computer use by the person suspected of misconduct.
6.8.9 Investigators are often required to interview the person suspected of misconduct and witnesses. It is important that the person suspected of misconduct understands the purpose of an interview. The purpose is usually to gather and test evidence to assist in establishing factual matters. An interview is not usually the primary means by which the person under investigation responds to the allegations. It is recommended that the interviewer explains the purpose of the interview, and where appropriate advises the person under investigation that they will be given other opportunities to respond to the case against them, before a decision is made.
6.8.10 An employee is generally bound to answer fair and reasonable questions relating to their activities as an employee. However, an employee suspected of misconduct cannot lawfully be directed to answer questions where this would tend to incriminate them in relation to a criminal offence or expose then to a finding of breach, including a possible sanction for that breach. There is a common law privilege against self-incrimination and a privilege against self-exposure to penalty. A refusal to respond to allegations of misconduct cannot be assumed to be evidence that the alleged misconduct occurred. A former employee is not obliged to participate in a Code investigation. However, it may be in their interests to do so.
6.8.11 An interviewer may wish to consider the following good practice:
- providing the interviewee with sufficient notice to allow for adequate preparation
- where appropriate advising the interviewee that they may be accompanied by another person to provide support. It would be good practice to specify that the support person cannot speak on the interviewee's behalf
- considering whether it would be appropriate to make available to the interviewee, before the interview, any documents that will be discussed at the interview
- preparing a set of questions and, if necessary having them quality assured, to avoid vague or 'leading' questions i.e. questions that might be hard to respond to or that might influence how responses are given
- advising interviewees that personal information relating to them, or any other person, and any evidence they provide, may be disclosed to the others, including the person suspected of misconduct, where necessary and appropriate
- wherever possible seek corroborating evidence from the interviewee(s) of any claims they make
- indicating that a record of the discussion will be prepared and will be provided to the interviewee. The objective is to have jointly agreed records of interviews. If this cannot be achieved it is good practice to document the area(s) of disagreement
- advising the interviewee of the arrangements for confirming the accuracy of the record of the interview, recording any disagreements, and setting a timeframe for the interviewee to respond
- deciding before the interview whether it is to be audio-recorded. In this case it is usually appropriate to make a copy of the recording available to the interviewee. Where a written record of interview is to be prepared, it may be convenient to use a note-taker.
6.8.12 In addition to conducting an interview, investigators should consider gathering additional evidence suggested by the person suspected of misconduct, particularly if the person considers that this evidence will corroborate their version of events or otherwise disprove the allegations against them. Such requests should be evaluated in light of the relevance of the evidence and overall fairness of the process.
Privacy issues and third party information
6.8.13 Agencies may receive unsolicited personal information about third parties during a misconduct investigation. This could include information about family members and colleagues in circumstances where the family members and colleagues are not aware that this information has been collected. Agencies may wish to consider whether they have an obligation to notify the third party of the collection of their personal information in accordance with Australian Privacy Principle 5 Notification of the collection of personal information. Where agencies consider that notification would not be appropriate, for example because it would undermine the purpose of collecting the information, it would be appropriate to document that decision.
Advising the person suspected of misconduct of relevant evidence
6.8.14 Subject to the agency's s15(3) procedures, the investigator should:
- Provide the person under investigation with the evidence collected during the investigation and allow them to respond, comment or correct the record. As indicated in Part II, Section 7.2 in Preparing a decision recordof this guide, it may be appropriate to provide a summary of the substance of the existing evidence and witness statements rather than the full documentation.
- Ensure that the employee has a reasonable opportunity to state their case, including any extenuating circumstances.
6.8.15 If new or conflicting evidence comes to light, that is relevant, credible and significant, reasonable steps must be taken to provide the person suspected of misconduct a reasonable opportunity to respond to that evidence before a decision on breach is made.
6.8.16 A proper record must be kept of the investigation material including copies of the evidence that is relied upon in making the decision. For information on record keeping obligations, see Part III, Section 8 of this guide.
Reviewing the evidence
6.8.17 In reviewing the evidence it is advisable to keep the following issues in mind:
- Has the employee suspected of misconduct been given a reasonable opportunity to respond to new or conflicting evidence?
- Have witnesses been questioned about evidence that conflicts with their witness statements?
- Has the response of the person under investigation been genuinely and fairly considered and have lines of inquiry suggested by that person been pursued where it is reasonable to do so?
- Is any evidence missing and is there enough is credible, relevant and significant, i.e. logically probative evidence, to be able to make findings of fact upon which a decision of breach or no breach could be made?
6.8.18 When making a judgement about the reliability of the evidence:
- primary sources of evidence are preferable to secondary sources. For example, hearsay evidence is of less value than a first-hand account.
- test disputed facts or seek corroboration from other witnesses or evidence, where possible
- consider the credibility of the witnesses—inconsistencies in evidence, honesty, possibility of collaboration or improper purpose
- a record of an event made contemporaneously is preferable to a record made days or weeks later.
6.8.19 Logical reasoning and good judgement are important when assessing evidence. Decision-makers may care to have regard to good practice guides prepared by the Administrative Review Council which are available on the Council's website.36
6.9 Investigation report
6.9.1 A good quality investigation report would:
- outline the nature of the suspected misconduct
- set out the steps taken to collect evidence and information
- outline the factual matters that need to be established to determine whether the employee under investigation did what was alleged. In order to do this the investigation report may need to establish a clear chronology of events
- present the evidence in a balanced way, including evidence both for and against the person suspected of misconduct
- acknowledge and consider the response by the person suspected of misconduct to the allegations and that person's response to any new or conflicting evidence that was uncovered in the course of the investigation
- if there is a conflict in the evidence, explain why one set of evidence is preferred over another
- outline the conclusions that are able to be made on the available evidence which need to flow logically from the evidence
- include reasons why the action or behaviour that is found on the evidence could be determined to be a breach of the element or elements of the Code.
6.10 Procedural requirements
6.10.1 Misconduct investigations and decision-making must comply with an agency's s15(3) procedures. Investigations must also be conducted according to other law, including the requirements of procedural fairness and other administrative law.
6.10.2 Generally, administrative decisions, such as those taken in the misconduct process, must have regard to procedural fairness. Procedural fairness requires that:
- a decision-maker be impartial and be free of actual or apparent bias (the bias rule)
- a person whose interests will be affected by a proposed decision receives a fair hearing, including the opportunity to respond to any adverse material that could influence the decision (the hearing rule)
- findings are based on evidence that is relevant and logically capable of supporting the findings (the evidence rule).37
6.10.3 The right to procedural fairness arises only in relation to those people for whom the decision might adversely affect a right or interest. Usually this will be confined to the employee suspected of misconduct rather than, for example, witnesses or complainants.
Procedural requirements in the misconduct investigation
6.10.4 The agency s15(3) procedures will set out the procedural requirements for determining suspected misconduct. This may vary between agencies. The following are the minimum requirements in determining a breach of the Code:
- Consistent with section 43 of the Directions, the person suspected of misconduct must be informed of the details of the suspected breach. This means that they need to be informed of what it is that they were alleged to have done and what elements of the Code they are suspected of breaching.
- This requirement is also consistent with 'the hearing rule' of procedural fairness.
- Consistent with section 43 of the Directions, the person suspected of misconduct must be informed of the sanctions that may be imposed.
- Consistent with section 43 of the Directions, the person suspected of misconduct must be given a reasonable opportunity to make a statement in relation to the suspected breach.
- This requirement is consistent with 'the hearing rule' of procedural fairness.
- The person suspected of misconduct must be given a reasonable opportunity to respond to the evidence gathered during the investigation, including responding to any adverse material, before a decision is made.
- Agency s15(3) procedures may require this but it is also consistent with 'the hearing rule' of procedural fairness.
- The breach decision-maker must give proper consideration to the person's statement and response to the evidence before making the determination.
- This is consistent with 'the hearing rule' of procedural fairness.
- If during the investigation new evidence comes to light about the person's actions or behaviours, reasonable steps must be taken to notify the person suspected of misconduct of this evidence, in compliance with agency s15(3) procedures and given an opportunity to respond before a determination is made about breach.
- This could include information suggesting possible additional breaches of the Code or that the allegations are more serious than originally thought.
- Agency s15(3) procedures must advise the person under investigation of any variation in the suspected breaches, in compliance with section 43 of the Directions.
- This requirement is consistent with 'the hearing rule' of procedural fairness.
- The decision-maker must act without bias or an appearance of bias i.e. the 'bias rule' of procedural fairness. This includes having an open mind about the matters under investigation and weighing the evidence fairly and dispassionately.
- There must be facts or information that logically supports any favourable or adverse findings, i.e. the 'evidence rule' of procedural fairness. For this reason, it is good practice for decision-makers to document reasons for their decision.
6.10.5 The hearing rule does not require providing all investigation material relevant to the allegation(s), but the person under investigation must be given sufficient details of the case against them to be able to respond properly. In some circumstances this will require providing all the evidence considered credible, relevant and significant to the investigation. In other circumstances it will be sufficient to summarise the evidence under consideration.
6.10.6 Credible, relevant and significant material may include adverse material that the decision-maker does not propose to rely on in making a particular finding or the decision on breach. Depending on the circumstances it may be necessary for the person under investigation to be given an opportunity to comment on this.
6.10.7 The breach decision-maker may advise the person under investigation of their preliminary views about the alleged breach and give them an opportunity to respond. This might be in the form of a draft decision or report. It is not usually necessary to do this unless it is a requirement of an agency's s15(3) procedures. However, in some cases, it may be a sensible precaution to mitigate concerns that the person has not been given a fair hearing.
6.10.8 Procedural fairness does not always require that adverse material be put in writing. Subject to any requirement in agency s15(3) procedures, it may in some cases be appropriate to put adverse material to the person at an interview.
6.10.9 Additionally, it is not usually necessary to give an extended time period to respond to adverse material. It is common practice to provide for a period of seven days for the person under investigation to respond to the allegations and evidence before making the breach decision. A similar period is usually provided for response to a proposed sanction decision. However, a longer period may be appropriate depending on the complexity of the allegations and the evidence, and the particular circumstances of the person under investigation.
6.10.10 The rules of procedural fairness require that the employee be given a reasonable opportunity, not a perfect opportunity to put their case. This is determined by an objective standard; that is, what a reasonable person would believe was a reasonable opportunity given the circumstances.
Duty to inquire
6.10.11 The extent to which an investigator or decision-maker follows up a line of inquiry will be a matter of judgement. It is not necessary to follow up all matters but only those which are of substance and which, if established, will have a direct impact on the decision. 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'.
Grounds for review under the Administrative Decisions (Judicial Review) Act
6.10.12 Decision-makers needs to be familiar with the grounds for review in s5 and s6 of the Administrative Decisions (Judicial Review) Act 1977(ADJR Act). A finding that a person has breached the Code may be invalid if the decision-maker:
- has not been appointed under the agency's s15(3) procedures
- fails to comply with the agency's s15(3) procedures
- makes a decision motivated by improper purpose
- exercises discretionary power in bad faith
- takes into account irrelevant considerations or fails to take into account relevant considerations
- acts at the direction or behest of another person
- acts unreasonably
- acts in accordance with a rule or policy without regard for the merits of the case
- acts on the basis of insufficient evidence.
6.11 Key points for agency guidance material
6.11.1 Guidance for decision-makers and investigators could:
- make a clear distinction between the agency's mandatory procedures established under s15(3) of the PS Act and any guidance material on misconduct investigations
- explain agency processes for choosing a breach decision-maker and investigator
- outline agency procedures for the appointment of a breach decision-maker
- ensure the decision-maker and any investigator are aware of the importance of being and perceived to be unbiased and independent
- guidance material could also cover what to do if there are claims of bias
- emphasise the need for the decision-maker, and investigator if the roles are separated, to comply with the agency's s15(3) procedures
- describe agency processes for conducting an investigation, including advice on issues such as preparing records of discussion and taking witness statements
- advise on the different approaches to determining the scope of an investigation
- stress the importance of complying with the requirements of procedural fairness and other administrative law principles
- note the requirement for investigations to be carried out with as little formality and as much expedition as a proper consideration of the matter allows
- emphasise the need for planning the investigation before starting an investigation
- recognise the need to take the time needed to review the process to ensure all available relevant evidence has been collected
- note the importance of having a fair and independent investigation
- provide contact points for support and advice for witnesses, the person under investigation, the decision-maker and any investigator
- refer to, or adapt, the checklists for decision-makers in the appendices to this guide
- refer investigators and decision-makers to the Administrative Review Council better practice guides on administrative decision-making available at www.arc.ag.gov.au.
7. The determination process
7.1 Deciding on decision-makers
7.1.1 Subject to the agency's s15(3) procedures, the investigator, breach decision-maker and sanction decision-maker may be the same or different persons.
7.1.2 An agency's s15(3) procedures may require a separation of the roles of breach and sanction decision-maker. Even if they do not, it is recommended that these roles are undertaken by different people. This assists in minimising the risk of procedural flaws, including apprehension of bias and having regard to irrelevant considerations in making the decision.
7.2 Role of the breach decision-maker
7.2.1 The role of the breach decision-maker is to determine whether or not the person suspected of misconduct has breached the Australian Public Service (APS) Code of Conduct (the Code) in accordance with the agency's s15(3) procedures. Appendix 9 Making a decision about a breach of the Australian Public Service Code of Conduct checklistprovides further guidance.
Responsibility for the decision
7.2.2 When a different person has undertaken the investigation, the breach decision-maker remains responsible for the decision. The decision-maker needs, separately and independently, to consider the evidence where an investigator has made a recommendation about whether a breach of the Code has occurred. The decision-maker reaches their own conclusions on the findings of fact and about breach.
7.2.3 Where a breach decision-maker has concerns about the recommendations made by an investigator, or about the investigatory process, a decision-maker may act on those concerns and take additional steps to correct procedural flaws or to satisfy themselves on particular matters. This might include writing to the person under investigation and giving them an opportunity to comment on the decision-maker's preliminary view about findings of fact and breaches of the Code before a decision is made.
7.2.4 The process of determining a breach of the Code requires the decision-maker to decide, after weighing the evidence, whether or not the person under investigation has done what they were alleged to have done, and then to decide, as a consequence, whether or not the person has breached particular elements of the Code.
7.2.5 In determining which elements of the Code have been breached it is important to focus on the element(s) most relevant to the behaviour. A targeted approach is consistent with the concept that misconduct action in the APS has a corrective function. It is easier to explain to a person found to have breached the Code that their conduct was wrong, or inappropriate, if the elements of the Code are obviously relevant to the misconduct. Even if the case can be made for a number of elements, adding extra elements can be unnecessary, add complexity to decisions and provide confusing messages about the seriousness with which the behaviour is viewed.
7.2.6 There is no necessary link between the number of elements of the Code that an employee has breached and the severity of the sanction.
7.2.7 Where more than one element of the Code has been breached, each element will need to be considered separately in the final decision. See Appendix 5 Elements of the Australian Public Service Code of Conduct for further information about the meaning of each element of the Code.
7.2.8 A further factor to consider in making a decision on whether particular conduct represents a breach of the Code is the existence of extenuating circumstances. For example a decision-maker may conclude that the person under investigation has done what was alleged but has made an honest mistake rather than breached the Code. The extenuating circumstances leading to that mistake might include systemic issues such as a lack of adequate training, or problems with technology, leading to a number of similar mistakes by colleagues. It is important not to confuse extenuating circumstances and mitigating circumstances. The latter are relevant to sanction and are discussed in Part II, Section 7.3 Factors to be considered in determining the sanction of this guide.
Evidence does not support a finding of misconduct
7.2.9 It may become clear to the breach decision-maker in the course of the investigation that no breach has occurred or that there is insufficient evidence to base a finding that a breach has occurred. If this happens the decision-maker can either terminate the decision-making process or alternatively finalise the decision-making-process with a determination that the employee has not breached the Code. The person under investigation should be advised of the outcome.
Standard of proof
7.2.10 The standard of proof applicable to findings that the Code has been breached, including the findings of fact that support the breach determination, is the civil standard. That is, findings are based on the conclusion that it is more likely than not that the person suspected of misconduct has done what they were alleged to have done. This is referred to as 'the balance of probability'.
7.2.11 Before reaching a finding the decision-maker needs to have regard to the seriousness of what is alleged and the consequences which might flow to the person suspected of misconduct if the allegations are proven. The level of satisfaction required on 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 indicated the need to act with proper care before finding that a serious allegation is established.
Preparing a decision record
7.2.12 A written record must be made of a determination of a breach of the Code, including details of the breach. If the person found to have breached was provided with a statement of reasons, the record must include that statement of reasons. See section 47 of the Australian Public Service Commissioner's Directions 2016 (the Directions). Agency s15(3) procedures may prescribe the form of that written record.
7.2.13 A breach decision might include:
- a summary of the evidence considered by the decision-maker
- where the decision-maker also considered a recommendation from an investigator, the decision-maker's response to the recommendation, including reasons for accepting or not accepting the investigator's recommendations. The investigator's report could be attached to avoid the need to reproduce the detail of the report in the decision record
- findings of fact about what the person under investigation has done or not done. The findings need to be as specific as possible and, wherever possible, linked to specific events
- a decision as to whether what happened amounts to misconduct and, if so, which element(s) of the Code were breached
- the reasons for reaching these conclusions.
7.2.14 The Administrative Review Council (ARC) Best-Practice Guide Decision Making: Reasons provides guidance for administrative decision-makers on documenting reasons for decisions.38
Advising the former employee or employee of the breach decision
7.2.15 It is good practice to inform a person found to have breached the Code in writing of the breach determination decision and to advise them of their rights of review. 39
7.2.16 Both employees and former employees found to have breached the Code have the right to seek review of the determination under s33 of the Public Service Act 1999 (PS Act). Seeking a review will not operate to stay the finding of breach or, in the case of employees, consideration of any sanction. For further information see Part III, Section 9 of on Review of actions and other review optionsof this guide.
7.2.17 An employee found to have breached the Code must be informed of the breach determination before any sanction can be imposed (section 64 of the Directions). A letter to the employee for this purpose could:
- enclose a copy of the breach determination decision record and, if appropriate, the investigation report, if any
- inform the employee of the process for deciding sanction
- It may be appropriate at this stage to provide the employee with the details of the actually sanctions being considered and the factors under consideration in determining a sanction – see Part II, Section 7.3 Making the sanction decision of this guide for further information.
- as indicated, notify the employee of the right to seek review of the determination under s33 of the PS Act.
7.3 Making the sanction decision
The purpose of imposing a sanction on an employee
7.3.1 Once a determination has been made that an employee has breached the Code, the next stage in the misconduct process is consideration of an appropriate sanction.
7.3.2 Sanctions are intended to be proportionate to the nature of the breach, to be a deterrent to the employee and others and to demonstrate that misconduct is not tolerated in the agency.
7.3.3 Sanctions are also intended to provide a clear message to the employee that their behaviour was not acceptable. Where a sanction is too severe it is likely to be seen as unfair and may be counterproductive.
Imposing a sanction
7.3.4 A sanction can only be imposed on an employee who is found under the agency's s15(3) procedures to have breached the Code (section 44 of the Directions).
7.3.5 Other administrative action such as counselling, training, mentoring, closer supervision or mediation may be considered more appropriate than a sanction. Such actions may be taken in addition to a sanction if they are likely to assist the employee to change their future behaviour.
7.3.6 A sanction decision-maker is a person who has been given a delegation to impose a sanction from the range set out in s15(1) of the PS Act. This power could be delegated to a person outside the agency or outside the APS. The prior written consent of the Australian Public Service Commissioner must be obtained if an agency wishes to delegate the sanction decision-making power to a person who is neither an APS employee, nor a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth40 (ss78(7) and (8) of the PS Act).
7.3.7 Further information on the role of the sanction decision-maker is at Appendix 10 Sanction decision-making checklist.
7.3.8 The framing of the delegation instrument should use broad language, bringing in relevant powers/functions under the PS Act and the Classification Rules 2000. The delegation instrument could be expressed 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 has been found (under procedures established under subsection 15(3) of the Act) to have breached the APS Code of Conduct, the sanctions set out in subsection 15(1) of the Act.
7.3.9 This gives the sanction decision-maker authority to impose the sanction of termination of employment under s29 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 s15(1) of the PS Act.
Separate sanction decision-maker
7.3.10 As set out in Part II, Section 7.1.2 of this guide, it is recommended that agencies separate the roles of breach decision-maker and sanction decision-maker, subject to the requirements in the agency's s15(3) procedures.
7.3.11 Having separate decision-makers does not prevent the breach decision-maker from recommending a sanction(s). However, the sanction decision-maker needs to exercise the sanction power independently, based on their consideration of the relevant matters. In making the sanction decision, the sanction decision-maker accepts, and acts on the basis of, the findings of the breach decision-maker.
Questioning the decision on breach of the Code
7.3.12 A sanction decision-maker may form the view that there has been a serious procedural flaw affecting the validity of the breach determination decision, for example a failure to give an employee an opportunity to comment on adverse material. A sanction decision-maker does not have the power to amend the breach determination nor to review the decision-making process. In these circumstances it may be appropriate to seek legal advice on available options.
7.3.13 A sanction decision-maker may impose one or more of the following sanctions (s15(1) of the PS Act):
- termination of employment
- reduction in classification
- re-assignment of duties
- reduction in salary
- deductions from salary, by way of fine41
- a reprimand.
7.3.14 There is no provision in the PS Act for any other form of sanction, but other management action may be taken 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.
7.3.15 A determination that misconduct has occurred does not necessarily mean that a sanction will be imposed. A decision can be taken that no other action is necessary or that other remedial action may be appropriate.
Consistency of sanctions
7.3.16 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 not be a simple, 'formula driven' approach. Differences in sanctions between cases within an agency should reflect the particular circumstances of both the misconduct and the employee.
7.3.17 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 corporate and/or legal resource that can be consulted by sanction decision-makers
- establish a database of cases and sanctions, and indicate that it can be consulted, having regard to privacy requirements, when deciding sanction.
7.3.18 Using a database to monitor cases and the imposition of sanctions also assists agencies to identify trends, for example in types and numbers of misconduct cases. Such databases would assist in responding to any request for information from the Australian Public Service Commissioner, for example in relation to the annual State of the Service Report.
Procedural fairness in the sanction process
7.3.19 Provisions in the PS Act and Directions emphasise the need to ensure procedural fairness in relation to any decision to impose a sanction on an APS employee.
7.3.20 Sanctions may only be imposed consistent with the agency's s15(3) procedures. In line with the Directions, the agency's s15(3) procedures must include a requirement to the effect that a sanction may not be imposed unless reasonable steps have been taken to
- inform the employee of:
- the determination; and
- the sanction or sanctions that are under consideration; and
- the factors that are under consideration in determining any sanction to be imposed; and
- give the employee a reasonable opportunity to make a statement in relation to sanctions under consideration.
7.3.21 The employee should be informed of the sanctions actually being considered rather than the range of sanctions available. The employee must be given a reasonable opportunity to comment on the proposed sanction, and the factors under consideration, before a decision on sanction is made.
7.3.22 Employees should be informed, consistent with the agency's s15(3) procedures, of how long they have to respond and whether the response can be oral or in writing. What can be considered 'a reasonable opportunity' to respond to the proposed sanction(s) depends on the relevant circumstances, including the extent of the misconduct and the seriousness of the breaches, the capacity of the employee to respond, and the sanction under consideration. Whether the response is oral or in writing may depend on the complexity of the matters the employee wishes to raise and/or the capacity of the employee to provide a written statement.
7.3.23 The sanction decision-maker needs to consider the employee's comments before finalising the sanction decision. This deliberative process should include an impartial consideration of the employee's comments concerning both the sanction(s) that might be applied, and any information or personal factors that may be relevant to that decision. It is good practice for the decision-maker to document this deliberation.
7.3.24 If the sanction decision-maker is inclined to impose a more severe sanction than was communicated to the employee, the decision-maker must advise the employee and give them a further reasonable opportunity to comment.
Factors to be considered in determining the sanction
7.3.25 As indicated previously, taking action in cases of suspected misconduct is primarily aimed at protecting the integrity of the agency and the APS and thereby maintaining public confidence in public administration. Rather than seeking to punish the employee, an aim of misconduct action is to maintain proper standards of conduct by APS employees and protect the reputation of the APS. 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, be a deterrent to others and demonstrate that misconduct is not tolerated in the agency. Some guidance on what agencies may reasonably and lawfully do to use the processes for handling misconduct as general deterrence is included in in Part III, Section 10 Quality assurance of this guide.
7.3.26 The sanction should focus on the seriousness of what the employee has done. The number of elements of the Code breached is not, of itself, a relevant consideration. Prior misconduct is relevant to the imposition of a sanction and might usefully be taken into account by the sanction decision-maker 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
- demonstrates that the employee may be unwilling to adhere to the standard of conduct expected.
7.3.27 Case law indicates 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 agency and 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 was 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. to maintain professional and ethical standards
- extent to which the misconduct affects the reputation of the agency and 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 or breaches of the Code 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 discussion with the employee within the last two years. Relevance of previous behaviour diminishes over time
- the employee's attempts to stabilise any personal situations impacting on work, for example 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 employee, including any loss of earnings already incurred by the employee as a result of suspension.
- The presence of mitigating factors that may warrant the imposition of a lesser sanction than might otherwise have been imposed including:
- 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 an employee's disability, health or other factors may have influenced their conduct, although care needs to be taken not to imply different standards of conduct based on the personal circumstances of employees
- 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.
7.3.28 Factors that may not be relevant would include claims that the employee found the misconduct process stressful or that the employee has incurred legal expenses.
Recording the sanction decision and advising the outcome
7.3.29 A written record must be made of the sanction decision. If the employee was provided with a statement of reasons, the record must include that statement of reasons (section 47 of the Directions). Agency s15(3) procedures may prescribe the form of that written record. A sanction decision might include:
- a description of the actions and behaviours and what elements of the Code were breached
- the decision-maker's analysis of the evidence
- the decision-maker's assessment of the seriousness of the breach
- the decision-maker's assessment of aggravating and mitigating factors, if any
- the decision on whether or not a sanction needs to be imposed and, if not, the factors the decision-maker considers relevant to taking other management action as an alternative
- the sanction.
7.3.30 The employee should be promptly notified in writing of the sanction decision and of their review rights. See Part III, Section 9 Review of Actions and other review options of this guide for more information.
7.3.31 Any suspension from duty must end at this point (regulation 3.10(6) of the Public Service Regulations 1999 (PS Regulations) refers).
Date of effect
7.3.32 The date of effect of a sanction will not necessarily be the same as the date on which the sanction was decided. It may be necessary to allow time for administrative action to be taken to put the sanction into effect, for example, organising an appropriate placement for a re-assignment of duties.
7.3.33 The date a sanction takes effect is not delayed where an employee applies for a review of the breach and/or sanction decision, by the Merit Protection Commissioner.
7.4 When particular sanctions may be appropriate
Termination of employment
7.4.1 Termination of employment is the most severe of sanctions. It may be appropriate where:
- the misconduct is so serious that it is no longer appropriate that the employee 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.
7.4.2 APS employees whose employment is terminated are able to seek review in the Fair Work Commission (FWC) or the courts. Below are some FWC, Federal Court, or other courts cases where findings relating to the termination of employees were made.42 The Australian Public Service Commission's publication Terminating APS employment: The legislative framework43 is also relevant.
Examples of behaviour found to breach the Code confirmed as a valid reason for termination by the Fair Work Commission, Federal Court or other court
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 Fair Work Commission (FWC) are provided below as a guide. It may also be helpful to agencies to be aware of observations made during hearings on a range of Code matters.
Repeated and consistent failure to treat persons with respect and courtesy, and without harassment, in connection with APS employment as required under s13(3) of the PS Act.
- An employee's employment was terminated after behaviour that included making blatantly false allegations, dogged refusal to acknowledge relevant policies and the Code, 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 s13(1) and s13(5) of the PS Act).
- In another decision, the FWC 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).
- An employee's employment was terminated, and the termination was upheld on appeal, when the employee continued to use extreme language to impugn the reputation of other employees in the department, make vexatious and malicious accusations about other employees, and failed to treat departmental employees and others with respect and courtesy and without harassment. (Salmond v Department of Defence  FWA 5395 and on appeal Salmond v Commonwealth of Australia (Department of Defence)  FWAFB 9636).
Serious failure to behave with honesty and integrity (as required under s13(1) of the PS Act)
- 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 s13(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—also involved breach of s13(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 (as required under s13(5) of the PS Act)
- directions in relation to return to duty (A Romanov-Hughes v Department of Defence, PR920194).
Serious misuse of Commonwealth resources (relating to s13(8) of the PS Act)
- 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 s13(11)—and O'Neile v Centrelink, PR973658).
Reduction in classification
7.4.3 Reduction in classification is an appropriate sanction where, based on the misconduct, 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, a reduction in classification may be the best sanction where an employee has demonstrated by their behaviour that it is not appropriate for them to have any supervisory responsibilities.
7.4.4 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.
7.4.5 Discussions need to take place within the agency to ensure that duties are available at the classification level proposed, before the sanction of reduction in classification is imposed.
7.4.6 A reduction in classification cannot be made for a specific period. The employee remains at the reduced classification until he or she secures higher duties or a promotion to their original, or higher, classification in line with normal merit-based selection. See also Part III, Section 8.4 Considering misconduct in the selection process of this guide.
7.4.7 An employee reduced in classification under s15(1)(b) of the PS Act would have their salary reduced commensurately. The sanction decision-maker needs to consider the agency's pay scales and specify not only the new classification but also the appropriate pay point within the classification. Factors to consider include:
- The level to which an APS employee's salary is to 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 is to be reduced is not clear from the relevant industrial agreement, it is recommended that the sanction decision-maker impose two sanctions—a reduction in classification under s15(1)(b) and a reduction in salary under s15(1)(d)—to ensure that there is authority to reduce the salary to a particular point. It is possible for more than one sanction to be applied to an employee found to have breached the Code; if the sanction decision-maker is satisfied that more than one sanction is appropriate in the circumstances.
7.4.8 Where a sanction decision-maker has not relied on the powers in s15(1)(b) and (d) to reduce classification and specify a lower salary, it would be appropriate to place the employee on the top pay point at the lower classification.
Re-assignment of duties
7.4.9 The sanction of re-assignment of duties at the same classification level, including to a different location, may be appropriate where the conduct in question does not warrant termination of employment but the integrity and effectiveness of the APS may be compromised if an employee is not removed from a particular location or from their present duties. 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
- an employee is no longer trusted to perform a particular aspect of their current duties.
7.4.10 The re-assignment of duties may be obvious to colleagues and the subject of gossip and speculation. Agencies need to consider options to communicate this decision in a way that minimises speculation and other possible adverse consequences.
7.4.11 Where the re-assignment of duties involves a change of location, it is advisable to take 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. The sanction delegate should also take into account the financial impact on the employee of loss of allowances, such as shift work allowances, where relevant.
7.4.12 A re-assignment of duties may be imposed for a defined period if it is considered appropriate to return the employee to their former duties after a specific period.
Reduction in salary
7.4.13 A reduction in salary can be used to reinforce the seriousness with which the employee's conduct is viewed. It may be appropriate where the employee's conduct does not indicate that he or she understands the seriousness of the breach they have committed.
7.4.14 A reduction in salary can be imposed for a specified and temporary period or an unspecified period. A reduction in salary should be imposed in a reasonable and proportionate way. For this reason, it is advisable that agencies set the reduction in salary for a specified and temporary period and state that period clearly in the sanction decision.
7.4.15 At the end of the period of reduced salary, the employee is entitled to be paid the salary at the level the employee would have received if they had not been subject to a temporary reduction in salary.
7.4.16 The amount of salary to be reduced is a matter for the sanction delegate. However, as this is a different and possibly a lesser sanction than a reduction in classification, the reduction in salary could be an amount valued at less than a reduction in classification.
7.4.17 Generally, any reduction in salary will be subject to a subsequent salary event, such as a promotion or a salary increase provided for in an industrial agreement. The likelihood of such events occurring during a period of temporary reduction should be considered by the sanction decision-maker, given that the effectiveness of the sanction may be reduced. It is, however, possible for an agency to impose a salary reduction for a specified period that makes provision for how the reduction would interact with any subsequent salary event. The sanction decision 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'.
Deductions from salary (fine)
7.4.18 This sanction may be appropriate for less serious breaches, where the agency needs to reinforce its concerns about the employee's conduct by way of short term financial impact. 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 short defined period. Deductions over a lengthy period would minimise the impact of the sanction. It is appropriate for the sanction decision-maker to decide the period of deductions taking into account any mitigating factors, including financial hardship, raised by the employee.
7.4.19 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 the meaning of the term 'salary' as provided for in the agency's remuneration arrangements.
7.4.20 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 misconduct process and presents no appreciable risk of further misconduct.
7.4.21 A reprimand acts as both a mark of disapproval of past conduct and as a warning for the future. A reprimand is not counselling but rather delivers a clear message to the employee that their behaviour was found to be below the acceptable standard.
7.4.22 Consideration also needs to be given to who would be the most effective person to deliver the reprimand. Generally a reprimand delivered by a higher level manager will carry greatest weight.
7.4.23 A reprimand is subject to the same standards of recordkeeping as other sanctions. For this reason it may be practical for the reprimand to be administered at a face-to-face meeting, with a written record of the reprimand, which is provided to the employee at the conclusion of the meeting, and a copy placed on the misconduct file.
7.5 Applying multiple sanctions for one breach
7.5.1 It is possible to impose more than one sanction, if the sanction decision-maker is satisfied that more than one sanction is appropriate in the circumstances. For example, an employee may be re-assigned duties and have a fine imposed, be reprimanded and have another sanction applied, or, as described above, an employee may have both their salary and classification reduced.
7.6 Applying sanctions for multiple breaches
7.6.1 It is not necessary to impose a separate sanction for each breach of an element of the Code. However, where the breaches are unrelated, for example a harassment incident and an unrelated theft, separate sanctions may be appropriate.
7.6.2 When an employee has breached several elements of the Code it is necessary to consider the totality of the behaviour and its seriousness when considering sanction(s) to ensure the total effect is in proportion. The total effect should be neither too harsh nor too lenient, in relation to the seriousness of the breaches when considered as a whole. This has been described as the totality principle: 'take a last look at the total to see whether it looks wrong' (Mill v The Queen (1988) 166 CLR 59).
7.7 Examples of sanction decisions
7.7.1 The Merit Protection Commissioner publishes summaries of decisions made after reviewing agency misconduct decisions, including sanction decisions. 44 These case summaries may be helpful when considering an appropriate sanction.
7.8 Employee moves to another APS agency before a determination or a sanction is made
7.8.1 An agency may become aware that an employee has received a job offer from another agency after the employee has been notified, in accordance with the agency's s15(3) procedures, that they are suspected of misconduct. Any move between APS agencies under s26 of the PS Act, in this circumstance, will generally be deferred by the operation of sections 37 and 38 of the Directions.
7.8.2 These sections provide that, unless the original agency head (the 'losing agency') and the new agency head (the 'gaining agency') agree otherwise, the movement, including on promotion, does not take effect until the misconduct action is resolved. The misconduct action is resolved by either:
- a determination being made under the agency's s15(3) procedures about the suspected misconduct, or
- a decision that a determination is not necessary.
7.8.3 Where an employee suspected of having breached the Code moves, with the agreement of the agency heads, before the misconduct action is resolved, the gaining agency may initiate an investigation into the suspected misconduct in accordance with the gaining agency's s15(3) procedures.
7.8.4 It would be open to the agency head of the gaining agency to use the expertise of employees from the losing agency in conducting a misconduct investigation. Regulation 9.2 of the PS Regulations allows the losing agency to disclose information to the gaining agency where it is relevant to the agency head's employer powers, including a misconduct investigation in the gaining agency.
7.8.5 Where an employee moves after a finding of a breach, but before the imposition of a sanction, it is not necessary for a fresh investigation to be carried out. A sanction delegate in the gaining agency head can impose a sanction, in accordance with the gaining agency's s15(3) procedures, on the basis of the losing agency's finding of breach. An agency head's power under s15 of the PS Act to impose a sanction extends not only to employees found under that agency's s15(3) procedures to have breached the Code, but also to employees found to have breached the Code under another agency's s15(3) procedures.
7.9 Machinery of Government changes
7.9.1 Section 72 of the PS Act deals with machinery of government (MOG) changes. When an employee who is the subject of a misconduct investigation is moved from their agency to another under s72 of the PS Act it is open to the gaining agency to decide whether it wishes to continue action to determine whether the employee breached the Code in the previous agency. This might be influenced by, for example, the seriousness of the suspected misconduct, and the relevance of it to the business of the gaining agency, or the seniority of the employee.
7.9.2 If the gaining agency decides to conduct an investigation, the investigation must be conducted under the gaining agency's s15(3) procedures.
7.9.3 The Australian Public Service Commissioner may determine special arrangements in respect of an employee moved under MOG changes if certain circumstances exist concerning the employee's employment. Section 72(5A) of the PS Act and regulation 8.3 of the PS Regulation set out these circumstances. They include where:
- a Code investigation is underway in the former agency
- a sanction is imposed in relation to a Code investigation, including a sanction that may have continuing effect, and
- an employee is suspended in their former agency in response to a suspected breach of the Code.
7.9.4 It is important that agencies consider this when a MOG change is under discussion. Agencies can seek further advice from the Australian Public Service Commission if a determination of this type is considered appropriate.
7.10 Effect of misconduct findings on an employee's security clearance
7.10.1 The Australian Government Security Vetting Agency (AGSVA) advises that it is the responsibility of security clearance holders to report to AGSVA any changes in their circumstances, including disciplinary procedures. AGSVA will assess the change in circumstances. Not all changes in personal circumstances require action.45
7.10.2 It would be good practice for agency guidance material to include information on how findings of breaches of the Code by security clearance holders are to be reported to AGSVA. It is recommended that this be done in consultation with the agency's security area.
7.11 Key points for agency guidance material
7.11.1 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 quality of the decisions. The checklists in the appendices to this guide may be useful in developing agency checklists.
7.11.2 Agency guidance material could include the following:
- advice on the role of the breach decision-maker and sanction decision-maker
- emphasis on the need for breach decision-makers and sanction decision-makers to follow agency s15(3) procedures and to have due regard to procedural fairness
- advice for the breach decision-maker and sanction decision-maker about preparing a decision record
- advice on any processes used within the agency to monitor the quality of breach of the Code decisions
- an explanation of the sanctions that can be imposed
- 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 within agencies in imposing sanctions
- references to sources of advice such as databases, the agency HR manager or other corporate expertise, this guide, the Merit Protection Commissioner's case summaries, and the Australian Public Service Commission's Ethics Advisory Service
- cover the handling of situations where evidence does not support misconduct having occurred
- advice on how to handle a case where an employee moves to another agency
- guidance on how findings of breaches of the Code by security clearance holders are to be reported.
18 The reporting of suspected misconduct to a supervisor may also amount to a public interest disclosure within the meaning of the Public Interest Disclosure Act 2013.
19 Section 36 of the Public Interest Disclosure Act 2013requires agency heads to appoint authorised officers and s60A of that Act describes the additional obligations of supervisors to provide information to authorised officers.
20 Crime and Misconduct Commission (2004) Speaking Up—Creating Positive Reporting Climates in the Queensland Public Sector, Building Capacity Series, No. 6 page 2.
21 Special circumstances and protections for the employee may nonetheless apply if the employee has made those allegations under the Public Interest Disclosure Act 2013.
22 Also see the APSC publication Working Together: Promoting mental health and wellbeing at work at www.apsc.gov.au/publications-and-media/current-publications/mental-health.
23 This provision does not apply to APS employees who left that agency to go to another APS agency on transfer or promotion.
24 In accordance with the transitional provisions in the Public Service Amendment Act 2013,Schedule 4, Part 6, Item 20
25 Review rights and procedures for former employees in this regard are set out in Division 7.3 of the Public Service Regulations.
26 For further information see the APSC publications Working Together: Promoting mental health and wellbeing at work at www.apsc.gov.au/publications-and-media/current-publications/mental-health.
27 See Department of the Attorney-General's Your Guide to Dispute Resolution www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx
28 Agencies may wish to refer to Department of Employment and Workplace Relations v Oakley, PR954267 and PR954267. This AIRC decision is 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, in that case, preferable to suspension from duty. The AIRC held that in that case it did not mean that a sanction of termination of employment was unfair.
30 Considering the phrase in the context of a different Act, the Full Federal Court said that 'exceptional circumstances' means 'unusual or out of the ordinary': Oreb v Willcock  FCAFC 197.
32 See the Administrative Review Council (ARC) Best-Practice Guide Decision Making: Natural Justice for more information on bias at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx
36 The Administrative Review Council (ARC) Best-Practice Guide Decision Making: Evidence, Facts and Findingsprovide guidance on how to gather and assess evidence. www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx
37 See the Administrative Review Council (ARC) Best-Practice Guide Decision Making: Natural Justice for more information at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx
38 The publication is available on the ARC website at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx
39 Where the Merit Protection Commissioner has conducted an investigation and made a decision, the finding is reviewable under the Administratie Decisions (Judicial Review) Act 1977
40 That is a statutory office holder or another agency head
41 Regulation 2.3 of the PS Regulations limits the deduction to no more than 2% of the APS employee's annual salary.
42 The AGS Legal briefing 104 Misconduct in the Australian Public Service also provides information on unfair dismissal cases considered by the FWC.
29 May 2018