Part III: Administrative Issues and Quality
8. Recordkeeping and access to records
8.1 Recordkeeping requirements
8.1.1 The Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988 are relevant to record keeping and access to, and use of, records in respect of misconduct actions. This Section covers record keeping with respect to employees and former employees.
8.1.2 Records relating to misconduct action need to be kept separate from the personnel file of the employee or former employee concerned. The existence of a separate misconduct file should, however, be noted on the personnel file e.g. by cross-reference.
8.1.3 Files of this kind are to be classified Sensitive—Personal and held in secure storage.
8.1.4 Access for management purposes should be allowed only on a need-to-know basis. Delegates who are deciding a sanction for subsequent misconduct should have access to these records to allow them to give proper weight to the employee's prior misconduct in deciding the appropriate sanction.
8.1.5 It is appropriate for material placed on the misconduct file to include:
- all correspondence with the employee or former employee subject to misconduct action, including the letter(s)
- informing them they are suspected of breaching the Code
- that sets out the 'case against them'
- advising them of the final determination decision
- outlining the proposed sanction and the reasons for it, and
- advising them of the sanction and their review rights
- any attachments to the correspondence
- decision records and/or statements of reasons with respect to the breach determination and any suspension or sanction decisions
- all relevant email correspondence relating to the investigation, decision-making or imposition of a sanction
- all material associated with planning the investigation, such as records of telephone calls, letters or emails organising interviews
- the investigation report with all the evidence relevant to the breach and sanction decisions attached, such as IT records and transcripts of witness interviews
- Where the agency engaged an investigator external to the agency, upon completion of the investigation, the agency should require the investigator to give the agency the investigation report, the evidence relevant to the breach decision and any sanction decision for the file.
- copies of any draft material provided to the employee for comment
- the employee's response to the correspondence.
8.2 Retention periods and disposal
8.2.1 The National Archives of Australia's Administrative Functions Disposal Authority Express (AFDA Express) of February 2013 sets out the minimum retention requirements for which various classes of records relating to counselling and misconduct matters are to be retained. AFDA Express is a legal instrument issued under the Archives Act 1983 and the advice provided below is consistent with this.
8.2.2 Records relating to counselling and misconduct include:
- allegations of misconduct where no investigation is made
- investigations that are carried out under an agency's s15(3) procedures but no findings of a breach of the Code are made
- investigations of alleged breaches of the Code, including matters which formed the basis for those investigations
- reviews of, or litigation about, misconduct action
- decisions about the imposition and implementation of a sanction.
8.2.3 AFDA Express sets out minimum retention periods for these types of documents. Full details can be accessed through the National Archives of Australia website.
8.2.4 AFDA Express provides a useful benchmark of contemporary Australian Public Service (APS) norms as to the minimum length of time that previous conduct is regarded as still relevant to later decisions affecting the employee, including decisions about sanctions arising from subsequent misconduct action. AFDA Express sets a minimum standard rather than an absolute limit. The decision about whether records should be kept for a period longer than the minimum established by AFDA Express rests with the agency.
8.2.5 Agencies need to establish policies that set out how long different records are to be retained in the agency. Not all documents of the same type need to be kept for the same amount of time, however, agencies should strive for consistency. It is good practice for these policies to be readily available to all employees.
8.2.6 In determining how long records are to be retained, agencies need to take into account the purpose of taking misconduct action. Such action is primarily aimed at protecting the integrity of the agency and the Australian Public Service (APS) and thereby maintaining public confidence in public administration. The aim of misconduct action is to maintain proper standards of conduct by APS employees and protect the reputation of the APS rather than punish a person for the rest of their working life. Timeframes for retaining records need to be fair and reasonable and reflect a balance between the needs of the agency, the employee and the public interest.
8.2.7 Agencies should ensure that records are destroyed in accordance with agency policies and procedures.
8.2.8 Included below are the minimum requirements relating to records of misconduct matters contained in AFDA Express. AFDA Express also provides direction on the retention of other records that may be relevant to misconduct matters.
Findings of no misconduct, including allegations where an investigation is not undertaken
8.2.9 Where an investigation results in a finding of no breach of the Code, records should be kept for 18 months after that decision is taken. However, a longer period, as specified below, may apply where the employee or former employee requests it. That longer period is:
- until the employee or former employee reaches the age of 75, or
- 7 years after the last action relating to the suspected misconduct.
8.2.10 The employee, or former employee, may also request that the records be destroyed at a specified time.
8.2.11 If a decision is made not to investigate an allegation of misconduct, for example because there is no utility in investigating the matter or the allegation is considered frivolous or vexatious or without substance, all records are to be kept for at least 18 months after the last action in the file.
Investigation not finalised
8.2.12 If an agency decides to discontinue an investigation into suspected misconduct, for example the employee resigns during the course of an investigation, documents that have been obtained or created up to the date the misconduct process was discontinues should be retained on a separate misconduct file and kept in accordance with agency policies for at least 18 months.
Findings of misconduct
8.2.13 If, in the period of five years after a finding of misconduct is made against an employee or former employee, there have been no new breaches of the Code:
- the misconduct record may be destroyed and any cross reference in the person's personnel file removed
- the employee or former employee should be informed in writing that the misconduct record has been destroyed and that any reference in their personnel file has been removed.
8.2.14 If an employee or former employee, who has been determined to have breached the Code, is found to have breached the Code again within five years of that determination, the records of prior misconduct should be kept for a further period of five years, dating from the time of the new determination.
8.3 Access to misconduct records
8.3.1 Misconduct records contain sensitive information and are to be available within an agency on a need-to-know basis. Nonetheless regulation 9.2 of the Public Service Regulations 1999 (PS Regulations) allows misconduct records to be disclosed and used where:
- the use is relevant or necessary for the exercise of an employer power, and
- the use or disclosure is consistent with any guidelines issued by the Australian Public Service Commissioner.
8.3.2 Misconduct records are only disclosed on a case-by-case basis having careful regard to any Commissioner guidelines and the Australian Privacy Principles (APP). This issue arises most frequently in relation to the consideration of sanctions for later misconduct or in the context of staff selection and placement processes. However it could also arise in other processes such as security clearances, organisational suitability assessments and performance management processes.
Transferring to a new agency
8.3.3 Misconduct records form part of the personnel file, although they are not physically attached to the personnel file, and follow the employee as they move between agencies as the personnel file does.
8.3.4 When passing misconduct records to a new agency, agencies should ensure that the employing agency is aware of the recordkeeping guidelines that apply to the misconduct record, including retention periods, and advise the agency when any material is able to be destroyed.
8.4 Considering misconduct in the selection process
8.4.1 An APS selection process is the means by which an agency gains relevant information about the 'work-related qualities' of internal and external candidates for APS jobs. These qualities may include skills and abilities, standard of work performance and relevant personal qualities genuinely required for the duties.46
8.4.2 Candidates should be asked for information on their previous work history. This includes whether the candidate has been or is being investigated for suspected breaches of the Code with respect to APS employment, and, where relevant and depending on the length of their APS employment, any codes applying to non APS employment. It is important that agencies take all reasonable steps to check the accuracy of the information provided. In providing information, candidates are obliged to adhere to the standards of honesty and integrity expected by the Code.
8.4.3 Candidates who are not APS employees at the time they provide this information are also obliged to meet this standard. Section 15(2A) of the Public Service Act 1999 (PS Act) provides that APS employees could be found to have breached the Code if, as candidates for engagement, they:
- knowingly provide false or misleading information
- wilfully fail to disclose information that they knew, or ought reasonably to have known, was relevant, or
- otherwise fail to behave honestly and with integrity.
8.4.4 Having a work history that includes a finding of misconduct, or an investigation for suspected misconduct, is not necessarily a relevant factor in deciding whether a candidate is suitable for a job vacancy. If a candidate discloses prior misconduct, or the selection delegate or panel is aware of prior misconduct, a decision on whether the candidate is suitable must be based on an assessment of the work-related qualities of the candidate against the work-related qualities genuinely required for the duties.
8.4.5 A delegate in a selection process may choose to rely on the honesty of candidates' declarations about their prior conduct records. It would, nonetheless, be prudent for a delegate to confirm that information with the candidate's current agency or employer. If the candidate is an APS employee, regulation 9.2 of the PS Regulations allows for the disclosure of this information where that is necessary for, or relevant to, employer powers including with respect to a selection process.
8.4.6 When considering a previous breach of the Code in the context of a selection process, the following factors may be relevant:
- the nature of the breach
- the sanction imposed
- how long ago the breach occurred
- the nature of the duties being performed at the time
- the duties of the job that is being filled
- whether this was a one-off action or indicative of a pattern of behaviour.
8.4.7 Where information about the past misconduct of a candidate is being taken into account as part of a selection process, the candidate should be advised of the matters being considered and provided with reasonable opportunity to comment before the selection decision is made.
8.4.8 If a candidate is the subject of a misconduct investigation that has yet to be finalised, care needs to be taken not prejudge the outcome of the investigation while ensuring the work related qualities of the candidate are appropriate for the duties to be performed. If, after the assessment of the candidate's work-related qualities, the candidate is preferred, the available options include:
- awaiting the outcome of the investigation, if practical
- proceeding with the assignment of duties or movement if the proposed breach is minor and not significant in the operational context of the employing agency
- offering the person a temporary assignment or movement pending the finalisation of the investigation.
8.4.9 Agencies may wish to consider advising candidates, in agency applicant information packs, that information regarding their previous behaviour, including any history of misconduct, will be sought from current or previous employers.
Referee reports and misconduct
8.4.10 It is a common practice for APS agencies to ask employees seeking promotion or movement at level to obtain a referee report from their current supervisor or manager.
8.4.11 The Australian Privacy Principles in the Privacy Act 1988 apply to providing references, including with respect to previous misconduct.
8.4.12 Supervisors should avoid any comment in a referee report that is unrelated to the employee's work performance. Any comment that is made should be relevant to the
work-related qualities of the job sought, as advised by the selection panel.
8.4.13 In determining whether to disclose information on a prior, or suspected, breach of the Code, factors to take into account include:
- the nature of the breach or suspected breach
- how long ago the breach occurred
- the duties being undertaken at the time
- the proposed duties of the new work
- the employee's conduct since the breach.
8.4.14 An employee whose conduct is under investigation may ask a referee from the agency to provide a reference to support a job application. Where the matters being investigated may be relevant to the work-related qualities required for the job, the referee could indicate that there have been concerns as yet unresolved. Care needs to be taken to avoid being seen to prejudge the situation.
8.4.15 Where an investigation has concluded that the employee did not breach the Code, it would generally be inappropriate for the referee to refer to the investigation. However, the investigation may be referred to where it resulted in findings relating to the performance or attitude of the employee, which, although not amounting to misconduct, may nevertheless reflect on the employee's suitability for the job in question.
8.4.16 If a breach of the Code has been determined, and where the breach is considered relevant, the referee may include an outline of the circumstances surrounding the breach and comment on the relevance of the breach to the work-related qualities required for the job.
8.4.17 In all cases, the weight to be given to records of determined misconduct will diminish over time.
8.5 Key points for agency guidance material
8.5.1 Agencies may wish to include in their guidance material information on the following:
- agency recordkeeping procedures and appropriate contact points within the agency
- agency's policies on the retention and disposal of conduct-related records and who is responsible for ensuring the policy is applied
- guidance on consideration of misconduct records in making staff selection decisions. Such guidance may more appropriately be placed in the agency's recruitment and selection procedures.
9. Review of actions and other review options
9.1 Fair employment decisions
9.1.1 One of the Australian Public Service (APS) Employment Principles is that the APS makes fair employment decisions with a fair system of review. Under s33 of the Public Service Act 1999 (PS Act), APS employees are entitled to review of actions or decisions that relate to their APS employment, with some exceptions. The Public Service Regulations 1999 (the PS Regulations) provide limits and exceptions to the right of review.
9.1.2 Division 7.3 of the PS Regulations extends that review right to former employees found after separating from the APS to have breached the Code.
9.2 Eligibility for review
Current APS employees
9.2.1 Non-Senior Executive Service (SES) employees who have been found to have breached the Code of Conduct (the Code) and who wish to challenge either the determination that a breach has occurred, or the sanction imposed, or both, may lodge an application for review with the Merit Protection Commissioner under Division 5.3 of the PS Regulations.
9.2.2 In addition to these decisions, other decisions relating to the investigation for suspected misconduct may also be reviewable including, for example, a decision to suspend an employee from duties or to re-assign an employee's duties temporarily while a Code investigation is underway. These decisions are reviewable in the first instance by the relevant agency head.
Former APS employees
9.2.3 A former non-Senior Executive Service APS employee may also seek a review of a determination that they breached the Code where the determination was made after the employee ceased APS employment. The relevant provisions are in Division 7.3 of the PS Regulations. As no sanction can be imposed on a former employee, there is no provision for former employees to have review rights in relation to sanction decisions.
9.3 Other avenues for review
Termination of employment
9.3.1 An employee whose APS employment has been terminated for misconduct cannot apply for review of that decision under s33 of the PS Act but may have access to the remedies under the Fair Work Act 2009 by making an application to the Fair Work Commission.
Other grounds for review by the Fair Work Commission
9.3.2 Employees and former employees may have other grounds for seeking review for seeking remedy under the Fair Work Act, including the general protections provisions in the Act. Further information is available from the Fair Work Commission at www.fwc.gov.au.
9.3.3 Employees and former employees may also have access to review by the courts, generally on a question of law, rather than the merits of the decision. For example, under the Administrative Decisions (Judicial Review) Act 1977, the Federal Circuit Court of Australia and the Federal Court of Australia have the power to review certain decisions. Generally, the courts' role is to ensure that decision-makers acted fairly and within the law and followed proper procedures in coming to a decision. The time limit for such applications is usually 28 days from being notified of the relevant decision. The websites for the courts are at www.federalcircuitcourt.gov.au and www.federalcourt.gov.au.
9.4 Key points for agency guidance material
9.4.1 It is good practice to include information about review rights in agency guidance material and advice in letters advising employees of Code decisions. In particular it would be helpful for guidance material to:
- advise employees, and former employees, of their rights of review under s33 of the PS Act and to link to the relevant information on the Australian Public Service Commission's website.
- advise employees whose employment has been terminated of their right of review by the Fair Work Commission and to link to the relevant information on the Fair Work Commission website.
9.4.2 In relation to decisions about suspension, agency guidance material will need to include advice that regulation 5.27(5) of the PS Regulations requires an agency head to tell an employee of their right of review to the Merit Protection Commissioner following any internal review by the agency head in accordance with s33 of the PS Act.
9.4.3 Agencies may wish to consider whether to include advice about the general protections provisions in the Fair Work Act and the option of judicial review.
9.5 Further information on reviews by the Merit Protection Commissioner
9.5.1 Further information on reviews of Code of Conduct decisions under the PS Act, including the role of the Merit Protection Commissioner, are on the Australian Public Service Commission website.
10. Quality assurance
10.1 Quality assurance
10.1.1 The following quality assurance mechanisms are good practice and assist in delivering quality outcomes and good governance for misconduct action.
Good practice policy and procedural guidance
10.1.2 Agencies may wish to consider the following approaches to developing policy and procedural guidance on the misconduct framework:
- Having process advice available to all employees about the management and reporting of suspected misconduct, including internal agency arrangements for reporting misconduct and public interest disclosures.
- Providing managers with better practice guidance on deciding how to respond to unacceptable behaviour, including whether or not to refer it for investigation as suspected misconduct, to ensure fairness and consistency in the treatment of suspected misconduct.
- Regularly review agency guidance material on reporting and managing suspected misconduct to ensure it is up to date, including contact details of agency practitioners and external sources of advice, for example the Australian Public Service Commission's Ethics Advisory Service.47
- Include a requirement in the agency's performance management system, tailored to the different responsibilities at different classification levels, to demonstrate knowledge of, and commitment to, the Australian Public Service (APS) Values, APS Employment Principles and the APS Code of Conduct (the Code).
Practices to support quality decision-making
10.1.3 Agencies may wish to consider the following approaches for ensuring the quality of decisions about misconduct.
- Processes for ensuring that the decision-maker who determines whether a breach has occurred has the necessary skills, experience and capability and providing that decision-maker with support and resources to do their job effectively.
- Having decision support tools for decision-makers, including checklists to ensure that procedural steps have been completed appropriately and good records kept.
- A quality assurance process for Code investigations and decisions, independent of the decision-maker, to check for compliance with procedures, consistency of decisions, timeliness and quality of outcomes.
- Considering whether to have separate breach and sanction decision-makers.
- Limiting the number of people in the agency who hold a delegation to decide sanction.
- Keeping central records of sanctions on a database, without including names, to guide decision-makers.
Practices to support the effective management and oversight of the misconduct action
10.1.4 Agencies may wish to consider the following approaches for the effectiveness of misconduct conduct action and executive oversight of this activity:
- Establish a database of cases, which could be a case management system, to assist consistency in handling cases and sanctions. A database can support quality assurance e.g. the timeliness of cases, and provide data to senior management on the number and types of misconduct cases, the numbers of reviews sought and the outcomes of any such reviews.
- Periodically conduct a file audit of a sample of misconduct files to evaluate if correct procedures and recordkeeping requirements are being followed
- Assess the outcomes of reviews conducted by the Merit Protection Commissioner to identify concerns about the quality of decision-making that may point to systemic issues
- Use agency-specific data from the annual APS Employee Census, or include questions, in a pulse or short, regular surveys, to establish the level of employee knowledge about misconduct.48
- For example, questions could be asked about how to report misconduct, including as a disclosure under the Public Interest Disclosure Act 2013 (PID Act), confidence in being protected from victimisation and discrimination if misconduct is reported, whether or not serious misconduct, including corruption has been observed in the last 12 months, and views on whether colleagues and managers behave in accordance with the Code.
- Regular reports to the agency executive on trends, or any systemic issues arising from misconduct and other integrity casework.
10.1.5 It is good practice for agencies to conduct periodic training on the relevance of the APS Values and the Code to employees' day-to-day work, including the use of scenarios relevant to the work of the agency. This training could also include information on the options for reporting misconduct within the agency
10.1.6 Case studies are useful for informing and educating employees about appropriate standards or behaviour, risks in the agency's operational environment and the consequences of misconduct, including sanctions. Such case studies can be published and have a significant educative effect.
10.1.7 Agencies should take reasonable steps to de-identify material to ensure that a person's identity cannot be 'reasonably ascertained' from the case study.49 Withholding a person's name may not be sufficient. For example, in the right circumstances information about an employee's work area or the type of complaint may be sufficient to identify that person.
10.1.8 The risk that the use and disclosure of personal information in this way would be contrary to the Australian Privacy Principles (APPs) in the Privacy Act 1988 is reduced if the affected employee has been made aware of this possibility at the time the information is collected. The employee can be made aware either through generally available information to all staff or through collection notices provided to the employee at the time of the investigation.
10.1.9 The Office of the Information Commissioner has guidelines on the Australian Privacy Principles (APPs), including APP 6.2(a) the use of personal information for a secondary purpose related to the primary purpose of collection.
10.1.10 Alternatively, agencies can amalgamate cases or use 'dummy' facts for the purpose of constructing case studies for training or educative purposes. Case summaries prepared by the Merit Protection Commissioner may be a useful resource—see Merit Protection Commissioner. Additionally, the Fair Work Commission publishes reviews of termination of employment decisions—see www.fwc.gov.au.
10.2 Providing information to a complainant about the outcome of a Code of Conduct investigation
10.2.1 The Australian Public Service Commission (the Commission) has issued guidance on providing information about the outcome of complaints of misconduct at www.apsc.gov.au/publications-and-media/circulars-and-advices/2008/circul.... This is advice is currently being reviewed. The revised information will be added to this guide as an appendix and agencies are advised to contact the Commission's Ethics Advisory Service on 02 6202 3747 or firstname.lastname@example.org if they are in doubt about the currency of guidance on this topic.
10.3 Key points for agency guidance material
10.3.1 Agency guidance material could include information drawn from this section on the following matters:
- good practice quality assurance mechanisms, including
- practices to support quality decision-making
- practices to support the effective management and oversight of the misconduct action
- periodic education of employees on the relevance of the Code to employees' day- to-day work and on the options for reporting misconduct within the agency
- the information provided to a complainant about the outcome of a Code investigation.
10.3.2 Agencies may also wish to consider developing templates, checklists and sample letters in accordance with agency misconduct procedures and other related policies. These will assist investigators and decision-makers to address more quickly the administrative and procedural fairness issues and provide a consistent approach across the agency.50
46 See s10A(2) of the PS Act, section 10 of the Directions.
49 Personal information can include any information or opinion from which a person's identity is apparent or can be 'reasonably ascertained'. See also Part I, Section 2.3 Managing misconduct action consistent with the privacy requirements of this guide.
50 Agencies may also wish to refer to the Administrative Review Councils Best Practice Guides in relation to administrative decision-making at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx