This guide also applies to the Astralian Public Service and
complaints made to it under S16 and S41(f) for which the Commission is
clearly in breach.
Introduction
The APS Values (the Values) and the Code of Conduct (the Code)
provide the standard of behaviour expected of agency heads and APS
employees. Under the
Public Service Act 1999 (the PS Act),
responsibility for promoting the Values and for developing procedures to
handle breaches of the Code within their agency lies with agency heads.
Action taken by agency heads must be consistent with the requirements
of the PS Act and the instruments issued under that Act, including the
Public Service Regulations 1999 (the Regulations) and the
Public Service Commissioner’s Directions 1999 (the Directions).
This good practice guide has been developed to assist human resource
practitioners in agencies to review and improve their guidance material
and procedures for reporting and dealing with suspected breaches of the
Code. Actions that are suspected breaches, or determined to be breaches
of the Code, are referred to as suspected misconduct or misconduct in
this guide.
This guide, together with the new Australian Public Service Commission (the Commission) publication,
Handling Misconduct Summary Guide, complements other Commission publications, in particular:
- APS Values and Code of Conduct in practice—A guide to official conduct for APS employees and agency heads1
- Respect: a good practice guide to promoting a culture free from bullying and harassment in the APS.2
The Summary Guide and this HR practitioner’s guide replace the 2002 Commission booklet
Managing Breaches of the APS Code of Conduct.
Acknowledgement
In developing the guide, the Commission has drawn upon the results of
an evaluation undertaken in 2004 into managing suspected breaches of
the Code. We acknowledge the contribution of, and thank, the Department
of Foreign Affairs and Trade, the Department of Finance and
Administration, the Child Support Agency, the Australian Taxation
Office, the Department of Health and Ageing and Centrelink. We would
also like to thank Centrelink for providing us with access to its recent
agency guidance developed by the Australian Government Solicitor.
Without the assistance of these agencies, this practitioner’s guide
would not have been possible.
Outline
The guide is in three parts. The underlying theme is developing
processes which adhere to the legislative requirements but that are also
both timely and efficient.
Part 1 (Chapters 1–2) outlines the legislative framework and some
general principles applying to reporting and dealing with suspected
misconduct (i.e. suspected breaches of the Code) in the APS.
Part 2 (Chapters 3–6) outlines steps and processes involved in reporting and managing of misconduct.
Part 3 (Chapters 7–9) covers a variety of issues related to handling
misconduct including quality assurance mechanisms that can be used by
agencies to ensure a timely and effective approach to conduct issues in
the workplace.
This publication is only available in electronic form from the
Commission’s website and the Commission would welcome any comments on
the usefulness of this version. Comments can be submitted by email to
employmentadvice@apsc.gov.au. Please use ‘Handling misconduct agency
comments’ in the subject heading of the email.
How to use this guide
While the guide will be useful for APS employees, its primary
function is to assist human resource areas in agencies to develop a
timely and effective approach to managing suspected and proven
misconduct.
At the different stages of the process for handling misconduct, the
relevant issues and appropriate good practice principles are identified
and discussed. At the end of relevant chapters, the guide suggests key
points that should be addressed in agency guidance material. These are
included as a checklist in Appendix 5. Other appendices provide further
information pertaining to misconduct including the legislative
instruments, relevant records in the National Archives of Australia
Administrative Functions Disposal Authority,
an employee suspension checklist, and a checklist of key points to be
included in agency guidance material. Relevant parts of this checklist
are included at the end of each chapter.
Agencies may use or adapt the information in this guide to develop, or revise existing, agency guidance material.
The suggested material for incorporation into agency guidance
included in this publication is not intended to be prescriptive. It is
included to be of practical assistance to agencies but should be adapted
to suit agencies’ circumstances. The good practice principles can also
be incorporated in other ways into existing agency guidance material and
procedures.
Limitations of this guide
When using this guide, agencies must note that it refers to the
legislative provisions in place in February 2007. In addition, what
constitutes a breach of the Code is frequently affected by evolving case
law.
The Commission has used its best endeavours to ensure the accuracy of
the material at the time of writing, and will update the document as
required. The Commission will also endeavour to notify agencies of any
significant changes to the misconduct regime through our website when
they come to our attention.
However, we are unable to guarantee that this guide is complete,
correct and up-to-date at any particular point of time, or that it is
relevant to the particular circumstances of any matter. It should not
therefore be relied upon as a substitute for detailed advice when making
decisions in Code of Conduct cases. Agencies should consider obtaining
legal advice before making a decision if they are uncertain of their
obligations or there is any element of uncertainty or risk involved.
This guide should be read in conjunction with Circular No 2008/3
Providing information on Code of Conduct investigation outcomes to
complainants.
Further advice/sources of information
Agencies can access the latest information on the Values and the Code through the Commission’s website at
www.apsc.gov.au
Other useful sources of information on issues relating to misconduct are:
- material on the website of the Office of the Federal Privacy Commissioner
- legal briefings from the Australian Government Solicitor and other legal firms
- published decisions of courts and the Australian Industrial Relations Commission (AIRC).
Legal issues
The PS Act is interpreted and applied by all APS agencies. It is
therefore important that the Commission be kept fully informed of
current legal thinking on the interpretation of the Act in relation to
misconduct so that this can inform the advice provided by the Commission
to agencies.
Agencies are requested to liaise with the Commission when obtaining
advice and forward copies of any legal advice that they obtain regarding
the Act to the Commission, in line with Clause 10 of the Legal Services
Directions.
These should be forwarded to:
Legal Services Unit
Australian Public Service Commission
16 Furzer Street
Phillip ACT 2606
Part 1: Framework and overview for handling misconduct
1. Framework
Under the
Public Service Act 1999 (the PS Act), agency heads
are responsible for upholding and promoting the APS Values (the
Values). Senior Executive Service (SES) employees are required to
promote the Values by personal example and other appropriate means, and
APS employees are required to uphold the Values.The Values together with
the APS Code of Conduct (the Code) form the statutory foundation
underpinning the conduct of all APS employees.
The legislation does not refer to 'misconduct'. The term 'misconduct'
is used in this guide as a convenient and readily understood label for
conduct that breaches the Code. Any actions or behaviours must be
referred to as suspected misconduct until a decision is made in
accordance with established agency procedures that misconduct has
occurred.
Legislative framework
Section 10(1) of the PS Act contains the Values which form the
framework for good public administration and, together with section 13
and Regulation 2.1 of the
Public Service Regulations 1999 (the
Regulations), sets out the standards of conduct required of APS
employees. The relevant legislative provisions in the PS Act (including
the Values and the Code), the
Public Service Commissioner's Directions 1999 (the Directions) and the Regulations are included in Appendix 1.
The Code applies to:
- all APS employees (i.e. ongoing and non-ongoing employees and
heads of overseas missions). It does not apply to locally engaged
employees in overseas missions. (section 7, section 13, section 39,
section 74 of the PS Act)
- all agency heads, including secretaries of departments, heads of
executive agencies and heads of statutory agencies (section 14(1) of the
PS Act)
- certain statutory office holders (sections 14(2) and (3) of the PS Act and Regulation 2.2).
Section 15(3) of the PS Act requires agency heads to develop
procedures for determining whether an employee in their agency has
breached the Code. This legislative requirement is supported by the
Directions and the Regulations. If an employee is found to have breached
the Code, an agency head may impose sanctions (section 15(1) of the PS
Act).
The procedures must comply with the basic procedural requirements
contained in the Directions (section 15(3)(a) of the PS Act) and must
have due regard to procedural fairness(section 15(3)(b) of the PS Act)
as the decisions made during the processes can be subject to
administrative and judicial review. It is important, therefore, that
anyone given responsibility for the various stages of the process—the
investigation of the misconduct, the determination of whether there has
been a breach of the Code and the setting of an appropriate
sanction—understand the legal requirements of the processes and their
obligations to all parties.
It is preferable for agency procedures to include a statement about
how the person who determines whether a breach has occurred is to be
selected or otherwise identified. An agency head may nominate any person
to make that selection, but the procedures must clearly identify one
person or position who can select a decision maker in each case.
Agency heads must take reasonable steps to ensure that every employee
in their agency has ready access to the documents that set out the
procedures (section 15(5) of the PS Act).
The Directions (Chapter 5) set out the basic procedural requirements
with which an agency must comply in its procedures for determining
whether an APS employee has breached the Code. These provisions include
that:
- before any determination about whether or not an APS employee has
breached the Code is made, the employee must be informed of the details
of the suspected breach (including any variation of those details) and
the range of sanctions that may be imposed. The employee must also be
given reasonable opportunity to make a statement in relation to the
suspected breach (Clause 5.2 of the Directions).
- the process for determining whether an APS employee has breached
the Code must be carried out with as little formality and as much
expedition as a proper consideration of the matter allows (Clause 5.3 of
the Directions).
- reasonable steps must be taken to ensure that the person who
determines whether an employee has breached the Code is, and appears to
be, independent and unbiased (Clause 5.4 of the Directions)
- after a determination in relation to a suspected breach of the
Code has been made, a written record stating whether the employee has
been found to have breached the Code must be prepared (Clause 5.5 of the
Directions). The Archives Act 1983 and the Privacy Act 1988 apply to records of this kind.3
Where the written record is to form the basis of a statement specifying
the grounds for termination of employment (as required by section29(2)
of the PS Act), the statement must also set out the findings on material
questions of fact and refer to the evidence or other material on which
those findings were based (section 25D of the Acts Interpretation Act 1901).
The PS Act and Directions contain requirements for the procedures
about determining whether an APS employee has breached the Code and the
PS Act provides for the range of sanctions that may be applied. There
are no direct provisions covering the process of determining an
appropriate sanction. In determining a sanction general administrative
law standards apply, including procedural fairness, and decisions are
subject to administrative and judicial review.
Where an employee changes status (from non-ongoing to ongoing, or
vice versa) or moves to a different agency, the applicable procedures
are those that apply to the employee's status or agency at the time when
the process for determining the breach is commenced (or recommenced if
an investigation had been underway in the old agency).
The APS whistleblowing scheme is provided for in the PS Act and the Regulations.
Section 16 of the PS Act prohibits the victimisation of, or
discrimination against an APS employee who reports a breach or alleged
breach of the Code to an agency head, the Public Service Commissioner,
the Merit Protection Commissioner or a person authorised by them.
Regulation 2.4 requires agency heads to establish procedures for dealing
with such reports. Clause 2.5(1)(d) of the Directions provides that an
agency head must put in place measures directed at ensuring that APS
employees are aware of the procedures, and are encouraged to make
reports in appropriate circumstances.
Other legislation of relevance to handling suspected misconduct or misconduct includes the:
- Administrative Decisions ( Judicial Review) Act 1977
- Freedom of Information Act 1982
- Occupational Health and Safety (Commonwealth Employment) Act 1988
- Privacy Act 1988
- Workplace Relations Act 1996.
Handling misconduct
Taking action in cases of suspected misconduct is primarily aimed at
protecting the integrity of the APS and thereby maintaining public
confidence in public administration, rather than aiming to 'punish' the
employee per se. Sanctions are intended to be proportionate to the
nature of the breach, to be a deterrent to others and confirm that
misconduct is not tolerated in the agency.
An agency's section 15(3) procedures to deal with misconduct and
associated guidance material should be fair and reasonable, striking an
appropriate balance between the interests of employees, the agency and
the public.
It is advisable that the procedures for determining whether there has
been a breach of the Code are kept relatively brief and be limited
essentially to the requirements of the PS Act and the Directions.
Agencies need to emphasise to managers and delegates, the importance
of complying with the agency procedures. As they are a legal instrument,
failure to comply will leave the agency exposed to legal risk. In
reviewing their procedures, agencies should make them as flexible as
possible while still meeting the legislative requirements. This will
help minimise the risk that investigators or delegates may later be
found to have breached the agency's section 15(3) procedures.
Agencies may also wish to consider including provisions in the procedures which deal with the issues such as:
- different processes for different categories of employees (e.g. ongoing and non-ongoing employees)
- an abbreviated procedure in cases where the employee admits to breaching the Code.
The procedures can be supplemented by more detailed guidance material
(along the lines of the advice provided in this guide) including
guidance on setting an appropriate sanction.
The procedures could form an attachment to the guidance material.
Suggested procedures can be found at Appendix 2 to this guide. An option
for implementing these procedures is provided in the flowchart in
Figure 1 included at the start of Part 2 of this guide.
Agencies should ensure that the wording of the guidance material
avoids words that appear to be imposing mandatory requirements in
addition to those required by the statutory framework when that is not
intended (e.g. using 'must').
One significant advantage of having only brief procedures
supplemented by more detailed guidance material is that if a case is
challenged (in the Australian Industrial Relations Commission (AIRC) or
the Federal Court, for example) it is then clear which are the mandatory
procedures that are legally binding, as distinct from other material
that has the status of guidance.
Not all cases of suspected misconduct need to be dealt with by a
formal investigation to determine whether a breach of the Code has
occurred. Misconduct action is part of a range of people management
practices that agencies should have in place to encourage high quality
performance.
Within the legislative framework agencies have adopted a variety of
models for facilitating the reporting of misconduct, protecting
whistleblowers and handling misconduct and suspected misconduct. The
models vary particularly in the degree to which the processes are
centralised or devolved. There is no single model that would suit the
circumstances of all agencies. The material in this guide can be adapted
to a range of models.
Terminology
The PS Act uses specific terminology to describe staffing activities. The terms used in the booklet have the following meanings:
- 'assignment of duties' refers to the action of the agency head in
determining the duties of an employee (section 25)—section 25 also
allows an agency head from time to time to determine the place or places
where the duties are to be performed. (A related action is the
'reassignment of duties' which is one of the sanctions available under
section 15).
- 'lower classification' refers to a classification which is in a lower APS Group in Schedule 1 of the Public Service Classification Rules 2000 than the one held by the employee.
- 'misconduct' is a generic term which refers to an action or
behaviour by an APS employee who is determined to have breached the APS
Code of Conduct. Prior to such a determination, the action or behaviour
is referred to as suspected misconduct.
- 'misconduct action' refers to those processes, in relation to an
individual, an agency carries out following the agency procedures
established under section 15(3) of the PS Act and Chapter 5 of the Public Service Commissioner's Directions 1999.
- 'movement' refers to a move of an ongoing employee between agencies (section 26).
- 'non-ongoing employee' is an employee who is engaged for either a
specified term or for the duration of a specified task or for duties
that are irregular or intermittent as mentioned in sections 22(2)(b) and
(c) of the PS Act.
- 'ongoing employee' is an APS employee engaged in accordance with section 22(2)(a) of the PS Act.
- 'promotion' means the ongoing assignment of duties to an ongoing
employee at a higher classification than the one held by the employee
(Direction 4.6). A promotion will also involve a 'movement' if the
promotion is to another agency.
- 'sanction' refers to an action taken by an agency head from a
range of possible sanctions set out in section 15(1) of the PS Act, in
response to a finding that an employee in the agency who is found under
the agency procedures to have breached the APS Code of Conduct.
- 'section 15(3) procedures' refer to the procedures established by
the agency head in accordance with section 15(3) of the PS Act for
determining whether an APS employee in the agency has breached the Code.
In this guide they may also be referred to as agency misconduct
procedures or misconduct procedures.
- 'whistleblowing' is a generic term which refers to an APS employee
making a report of breaches or alleged breaches of the Code to an
authorised person as set out in section 16 of the PS Act.
2. Overview of the process for handling misconduct
APS agencies, their employees and managers all have obligations in
relation to dealing with suspected and proven misconduct. Agencies have
obligations to provide their employees with clear guidance and training
that covers how employees should conduct themselves in the workplace
including the central role of the Values and the Code. Agencies should
have procedures and processes in place that protect the integrity of the
agency and the APS, identify questionable behaviour and ensure that
action is taken to deal with misconduct.
APS employees must uphold the Values and comply with the Code. Agency
heads and SES employees have an additional duty to promote the Values.
Misconduct in the APS
Misconduct refers to any action or behaviour by employees which
breaches the Values and the Code. Any such action or behaviours must be
referred to as suspected misconduct until a decision is made in
accordance with established agency procedures that misconduct has
occurred. The Code is reproduced in Appendix 1.
The Code applies to all APS employees.
4 However, if an
employee is serving a period of probation imposed as a condition of
engagement, agencies can choose to handle behavioural issues within the
probationary framework and not by applying the misconduct procedures.
Agencies should refer to the Commission publication,
Conditions of Engagement.
5
In broad terms, an APS employee whose conduct does not comply with an
element of the Code can be found to have breached the Code. Where an
element of the Code contains more than one item, it may not be necessary
for the employee to have breached all items in order for a breach of
the Code to be determined to have occurred. In the case, for example, of
section 13(3) of the PS Act, that requires that an employee, when
acting in the course of APS employment, must treat everyone with respect
and courtesy, and without harassment, an employee who was discourteous,
but who has not engaged in harassing behaviour, could be found to have
breached the Code.
Misconduct can vary from serious (e.g. large scale fraud, theft,
misusing clients' personal information, sexual harassment and leaking
classified documentation) to relatively minor (for example, a single,
uncharacteristic angry outburst or use of the agency email system to
send a low volume of inappropriate but inoffensive non-work related
email to friends).
Not all suspected misconduct needs to be dealt with by implementing misconduct procedures.
With minor misconduct or in cases involving personality clashes,
other approaches such as using the performance management system or
using alternative forms of dispute resolution(such as mediation or
counselling) may be the most effective way to manage the behaviour.
In all cases, however, it is important that the behaviour be
addressed in some way and a record made of any action taken and the
reasons for it. Minor types of misconduct, if unaddressed, may enable
repeated inappropriate behaviour or escalate to more serious issues.
