Functions of Steven Segwick APS Commissioner/ Fucking over the system

It is clear Steven Sedgwick , Australian Public Service Commissioner needs a good fuck up his ARSE!!!!

According to his findings on misconduct of Agency heads, this corrupt bit of shit considers failure to carry out the functions of a Government Agency with integrity and honesty is not a breach of the code of conduct.

This Commissioner must be pulling his cock!!!

Handling misconduct : A human resources practitioner's guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct

Note that this page is under review. It has not yet been updated to reflect changes to the Public Service Act 1999 and Public Service Regulations 1999, or contained in the Australian Public Service Commissioner’s Directions 2013, that came into effect on 1 July 2013. Agencies may continue to use the guidance for reference, but should be aware that it may not reflect current legislative requirements.

Important information

The information on timeframes for lodging a review of action in Part 8 on this page has been updated.
The PDF version refers to the timeframes applicable in 2008.

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.

Agency-based codes of conduct/expected behaviours

Many agencies promulgate their own code of conduct or expected behaviours.
When an employee infringes an agency-based code or expected behaviours, the agency must be able to link the conduct or behaviour in question to a particular element in the APS Code of Conduct, if it is to form the basis of a misconduct action. Given that, it would be useful to minimise such additional codes and link any provisions of agency-based codes to the APS Code of Conduct in material that is distributed to employees.

Relationship between misconduct and performance management processes

There are different approaches to determining whether actions and behaviours should be dealt with under an agency's misconduct or performance management processes. Two common approaches are:

• using a formal process except for very minor issues, and subsequently determining that either a reprimand, or no sanction, is appropriate, if the employee's response to the misconduct action satisfies the sanction delegate that a repetition of the behaviour is unlikely
• using performance management measures to deal with certain types of misconduct (such as one-off incidents of bullying, harassment or rudeness to co-workers, managers or clients) as they arise.

While it may be appropriate to deal with minor misconduct issues in a variety of ways including through the performance management system, more serious cases of misconduct or repeated minor incidents would appropriately be dealt with under misconduct procedures.
Agencies will need to consider each case of unsatisfactory behaviour on its merits to determine whether it should be best handled through misconduct or performance management procedures.
Care needs to be taken if there is a medical reason for the unsatisfactory behaviour as many agencies' performance management processes exclude the application of the process where there is an apparent medical reason for a perceived failure to perform. Further, in the employment context it is not discriminatory to expect all employees to abide by a single conduct standard, regardless of physical or mental capability.⁶ As such, the correct approach in those circumstances is not to have regard to the disability in the course of determining whether there is a breach, but rather to consider it as a potential mitigating factor when applying a sanction. This is discussed in Chapter 6 under the heading 'Factors to be considered in determining the sanction').

The connection between work and misconduct

The various elements of the Code specify three different levels of connectedness between the standard of conduct and APS employment, as follows:

• 'in the course of employment'
• 'in connection with employment'
• 'at all times'.

The terms 'in the course of employment' and 'in connection with employment' apply to actions or behaviour where there is clearly some link to the duties performed by employees.
As a general rule, 'in the course of employment' is used in direct association with the particular conduct expected of APS employees at work, while 'in connection with employment' is usually used to address situations where an employee's actions may have some influence on how they perform their duties. The term 'at all times' means that conduct which is apparently unrelated to the performance of duties may be subject to the Code if it can be demonstrated that there is a real connection between the behaviour and its effect on the workplace.
There are other elements of the Code where the level of connectedness is not specified.
In these cases, connectedness is inherent in the element itself (e.g. the requirement to comply with any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction). Managers and employees need to be aware of these different levels of connectedness to fully understand the standards of conduct required.
Suspected misconduct that occurs outside the place of employment is an area which is influenced by evolving common law.
Those elements of the Code applying 'in the course of APS employment' (e.g. an APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment) can cover behaviour outside the workplace but in work- related contexts, such as work functions (e.g. Christmas parties) and business trips, would depend on factors such as:

• whether the activity was sponsored or organised by the employer
• where and when the behaviour occurred (e.g. did it occur at the workplace or during working hours, did a work function have a clear finishing time?)
• whether a person was 'on duty' (e.g. acting in a representational capacity).

The term 'at all times' used in the element of the Code that requires that an APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS (section 13(11)) provides for a broader application to conduct outside of work hours than other elements of the Code. One example of a possible breach of section 13(11) could be harassment of one employee by another at a social event involving work colleagues outside of work (but not an event sponsored or organised by the employer).
Courts and tribunals have provided guidance on what misconduct by an employee outside of work is the legitimate concern of the employer. The AIRC has upheld termination of employment in circumstances where:

• there was a clear connection between the employee's out of hours conduct and their employment and
• the conduct was incompatible with the employee's duty as an employee or was likely to cause serious damage to the employment relationship.⁷

Misconduct that may also be a criminal act

Agencies can face difficult judgements where misconduct proceedings interact with criminal proceedings, including whether or not to commence misconduct proceedings concurrently with a criminal trial. Criminal proceedings may result from an employee's behaviour in the workplace as well as from his or her private actions.
Where an employee's behaviour may be both a breach of the Code and a criminal offence, misconduct action need not necessarily be delayed until criminal processes have been completed.⁸ Agencies should seek advice from the police and the Director of Public Prosecutions before alerting the employee of any allegations of misconduct.
A key consideration is the need to avoid prejudicing the criminal process. AGS has advised that an agency should not proceed with a misconduct action if the police or prosecuting authorities consider the misconduct action may prejudice criminal proceedings.
If there is some risk of prejudicing the criminal proceedings, agencies may initiate a misconduct action (putting the employee on notice that an action will ensue) but may immediately suspend the investigation pending the outcome of criminal proceedings.
The Commonwealth Fraud Control Guidelines 2002 make it clear that agencies must refer all allegations of serious or complex fraud involving Commonwealth interests to the Australian Federal Police. Agencies should discuss other suspected behaviour that involves potentially serious criminal conduct with the relevant law enforcement agency.

Criminal offences outside the workplace

The 'at all times' behavioural element of the Code may provide one of the bases for determining whether an employee who has been found guilty of a criminal offence committed outside the workplace has also breached the Code. In order for a breach to be found in these cases, it would be necessary to assess whether the criminal behaviour has compromised the integrity and good reputation of the APS, and the extent to which that behaviour has adversely affected the employee's position in the workplace.
Such an assessment should take into account:

• the principle that APS employees are also citizens and like all other employees are entitled to a private life. In line with this principle, a criminal conviction for drink driving outside the work place, for example, where the employee was not required to drive a car as part of their duties is unlikely to be considered a breach of the Code.
• certain criminal charges may have different impacts in different agencies depending on the nature of the charges and the role of the agency.

In serious criminal cases, it may be appropriate to suspend the employee from duty until the decision of the Court is known. Suspension in such cases is discussed in Chapter 4.

The process for handling misconduct

The process for handling misconduct can be divided into a number of stages:

• receiving a report of suspected misconduct
• initial consideration of the report to decide how best to handle the suspected misconduct
• commencing a misconduct action under the misconduct procedures and undertaking an investigation
• deciding whether the misconduct has occurred
• imposing the appropriate sanction where necessary.

The different steps are discussed in detail in Chapters 3–6 and are illustrated in the flowchart in Figure 1 (see page 22) which provides an option for implementing the suggested agency procedures in Appendix 2. Agencies should also refer to the section in Chapter 9, under the heading 'Avoiding unnecessary delay'.

Roles and responsibilities in handling misconduct

The allocation of decision-making tasks associated with reporting and dealing with misconduct must not be inconsistent with the agency misconduct procedures and should be consistent with any associated agency guidance material. The range of different processes would include:

• an investigator with no decision-making function who prepares a brief for a decision maker who may or may not have the delegation to impose a sanction
• the decision maker conducts the investigation unsupported, determines a breach and exercises the sanction delegation
• the decision maker conducts the investigation unsupported, determines a breach and makes recommendations to a separate sanction delegate
• briefing an external investigator to determine a breach and make recommendations as to the appropriate sanction. The external investigator needs to be authorised to make such a determination in line with the agency's procedures.

Whatever approach is adopted, the associated guidance material should be clear about respective roles and responsibilities and that quality control mechanisms are built in.
There are a number of decisions that will be required in handling misconduct including:

• the initial decision on how to handle the report of suspected misconduct (i.e. whether to take action under the agency's misconduct procedures or not)
• deciding whether to suspend an employee and any review of that decision
• deciding whether there has been misconduct
• imposing a sanction.

Agencies need to consider whether the decision as to whether misconduct has taken place and the decision relating to imposing a sanction are to be made by the same person or whether to have separate decision makers. Even where it is permissible to have one decision maker for both tasks, it can (in some cases) be desirable to have different decision makers in order to avoid any bias issues. It is also generally desirable that the suspension delegate be a different person from the decision maker or delegate in relation to determining misconduct and/or the sanction.
Agencies must ensure that all people with responsibility for decision-making in handling a misconduct action have the appropriate authority to make that decision and that they both are, and are perceived as, independent and free of bias.

The rights of the employee suspected of misconduct

It is useful for guidance material to set out clearly the rights of the employee who is being investigated in relation to a suspected breach of the Code both for their information but also as a reminder to decision makers and other agency employees. At the minimum:

• The identity of the employee who has been accused of misconduct (and the detail of the allegations) should be kept confidential as far as possible and managed on a 'need to know' basis, consistent with the requirements of the Privacy Act 1988.
• Employees of the agency must not make statements that presume the 'guilt' or otherwise of the accused employee.
• The investigation into a report of suspected misconduct should be handled in a timely, systematic and effective manner and be consistent with procedural fairness requirements.
• Appropriate record keeping should be observed including disposal of misconduct records in accordance with agency procedures. Recordkeeping requirements and access to information are discussed in Chapter 7.

Agencies should note that, although an employee is generally bound to answer fair and reasonable questions relating to their activities as an APS employee, an employee suspected of misconduct cannot be lawfully directed to answer questions relating to the matter where this would tend to incriminate them. The PS Act framework, including the duty to obey lawful and reasonable directions, does not remove the common law privilege against self incrimination.⁹

Key points for agency guidance material

Agency guidance material could include information drawn from this chapter on the following:

• an employee's responsibility to uphold the Values and the Code
• what constitutes misconduct illustrated by agency specific examples within and outside of the workplace
• the relationship between any agency-based codes and the APS Code
• the preferred approach to the interaction between managing misconduct and underperformance within the agency
• the rights of an employee who is being investigated in relation to a suspected breach of the Code
• links to agency material/training on the Code available to employees and links to relevant APS Commission material if relevant (e.g. APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads).¹⁰

Part 2: Main steps in handling misconduct

Figure 1: An option for implementing the suggested agency procedures in Appendix 2

3. Reporting suspected misconduct

Agencies need to be proactive in providing and promoting mechanisms for the reporting by the public and employees of suspected misconduct. Internal reporting of suspected misconduct is vital to the integrity of the APS.
It is good practice for agencies to have more than one way for their employees to report suspected misconduct and that these various options are promoted to employees. Options can include:

• central conduct or ethics units
• employee advice or counselling units
• fraud prevention and control units and hotlines
• other hotlines
• email reporting addresses
• the identification of authorised people to receive reports (such as the agency head or the head of corporate management group).

If agencies make use of several methods it would be good practice for agencies to draw together the relevant data so that they can properly monitor overall trends or issues. This is discussed in more detail in Chapter 9, Quality Assurance and Streamlining the Process.
Guidance on reporting misconduct could be a separate document or included as a section in broader guidance material that covers both reporting and dealing with misconduct.
Provisions should be made for anonymous reports, although employees should be encouraged to come forward to make reports wherever possible as this can assist with successful investigation of the report. An anonymous report is problematic as there is no way of verifying the allegation and it can be used vexatiously. Assurances and clear policies about protecting reporting employees from victimisation and discrimination can assist in this regard. Employees also need to be advised that misconduct action may be taken against an employee who makes a frivolous or vexatious report of suspected misconduct.
Supervisors and managers must report behaviour that they suspect breaches the Code by an employee for whom they have supervisory responsibility.
Managers also have an important role in encouraging and supporting staff who are considering reporting suspected misconduct. Research has indicated that it is often managers' handling of their workplace, as much as formal legislative and organisational systems, that determine whether conscientious staff speak-up.¹¹ Agencies should undertake periodic training and awareness raising activities so that their employees and managers understand their responsibilities, and the relevant agency processes, in reporting and dealing with misconduct.
Investment in training and awareness raising activities pays off.¹² Agencies that make large investments have:

• larger proportions of staff who indicate that their agency has made them aware that they can report a serious breach of the Code to an authorised person and
• lower proportions of staff stating that they would not be willing to report serious misconduct because of fears of victimisation compared to agencies with smaller levels of investment.

Whistleblowing provisions and reporting of misconduct

The PS Act has provisions (section 16) that provide protection for employees who make whistleblower reports of suspected misconduct. Employees who report a suspected breach of the Code to a person authorised to receive the report (an agency head, the Public Service Commissioner or the Merit Protection Commissioner, or persons that they authorise) must not be victimised, or discriminated against because they made such a report. The Regulations (regulation 2.4) provide a framework for agencies to develop processes for dealing with whistleblowing reports.
In many people's minds the term 'whistleblower' is linked with public exposure of wrongdoing and/or leaking to the media, and is usually only associated with alleged misconduct by senior people in an organisation.
However, any employee who reports misconduct orally or otherwise to an 'authorised person' is in fact making a whistleblower report under section 16 and is entitled to the protections and rights under section 16 and the Regulations regardless of whether they identify their disclosure as a whistleblower report, or realise that it is a whistleblower report. Employees should be aware that any report can be considered to be a potential whistleblower report once the allegation has been made as the reporting employee has no control over how the report of suspected misconduct will be handled within the agency.
Such an approach would mean that:

• the findings into an investigation of a report of suspected misconduct would be dealt with as soon as practicable
• employees would be provided with information about their rights to be protected from victimisation or discrimination
• agencies would take a proactive approach to ensuring the protection of employees reporting suspected misconduct from victimisation and harassment.

Agencies would let the reporting employee know what has been decided in terms of further action in relation to their report. Such an approach would need to be mindful of privacy considerations, but could help to address any concern employees might have that action is not taken on complaints within an agency.
Many agencies currently have nominated a wide range of people as authorised to receive whistleblower reports in their whistleblower processes. Agencies may wish to consider reducing the number of authorised people to a more limited number of staff so that making whistleblower report is a choice that is consciously made by employees.
Agency guidance material needs to be clear about:

• who has the authority to receive whistleblower reports (Regulation 2.4(2)(b))
• who has the authority to investigate such reports (Regulation 2.4(2)(d)(ii))
• who has the authority to decide on the basis of the outcome of the investigation whether a misconduct action is warranted.

Records of the process and decision should also be kept consistent with the Archives Act 1983 which is discussed in Chapter 7.

Encouragement to report misconduct

There is no general common law duty to report a fellow employee's misconduct although it can arise as part of the general duty of fidelity and good faith in certain circumstances. In the APS, employees have special obligations by virtue of the Values and Code and by being a public servant.
The Values and the Code establish that:

• the APS has the highest ethical standards (Value 10(1)(d))
• an APS employee must behave honestly and with integrity in the course of APS employment (section (13)(1) of the Code)
• an APS employee must at all times behave in a way that upholds the Values and the integrity and good reputation of the APS (section 13(11) of the Code).

The Commissioner's Directions are also relevant. Direction 2.5(1) requires agency heads to do certain things to uphold the Values, including that they put in place measures to ensure that employees are encouraged to make whistleblowing disclosures in appropriate circumstances, and that managers are aware of the importance of modelling and promoting the highest standard of ethical behaviour.This latter aspect is further developed by Direction 2.5(2) which requires an APS employee, taking into account their duties and responsibilities, to model and promote the highest standard of ethical behaviour.
As such, the Commission considers that the duty to act with integrity and with the highest ethical standards imposes a reporting obligation on all employees with regard to suspected misconduct. In some circumstances, particularly for employees with managerial responsibilities, it could be a breach of the Code for an employee not to report suspected misconduct.
An employee's duty is to be both accountable against formal standards and reporting requirements, and to be personally accountable for internalising acceptable behaviours, which includes the daily application of the Values. Within this context, agencies should promote the concept of duty, which would include reporting suspected misconduct.

Employees reporting or witnessing misconduct— protection from retribution

Some employees may have concerns regarding reporting other employees for misconduct and possible victimisation or discrimination, especially if the suspected misconduct involves close colleagues and/or more senior employees.
Agencies are required to protect employees who make formal reports of suspected misconduct to authorised persons from any retribution such as victimisation or discrimination (section 16). Employees making reports of suspected misconduct in other ways, however, are also protected—section 13(3) of the Code requires APS employees to treat everyone with respect and courtesy, and without harassment. These protections would also extend to witnesses in misconduct cases if there is a possibility of retribution towards them.
The identity of employees who report misconduct or who provide witness statements should be kept confidential as far as the law allows. In some cases, where the identity of the person reporting the misconduct is a key part of the accused employee 'knowing the case against them' the identity of the reporting employee may need to be disclosed. Before this is done, however, the reporting employee should be advised of the disclosure and encouraged to report any behaviours that they regard as retaliatory.
If the allegation is referred to another office or agency such as the police, the Commonwealth Director of Prosecutions or the Public Service Commissioner or Merit Protection Commissioner, agencies should stress their desire to preserve the confidentiality of the sources of information in relation to the misconduct to the maximum degree possible.
Employees need to be aware, however, that if they are a key witness in a contested prosecution it is likely that their identity will become a matter of public record. Should another office take over the investigation, the agency should continue to actively protect the employee who has made the report or employees who have made witness statements from retaliation.
Agencies should consider the circumstances of each report of suspected misconduct to determine if a formal assessment of the possibility of retribution is necessary. On the basis of this assessment, protective mechanisms, if required, should be put in place. These mechanisms may include but are not limited to:

• directing employees who are suspected of misconduct not to enter into any discussion about the incident/s with the employee reporting the misconduct or other witnesses
• directing the manager of the employee to take active steps to promote a workplace culture which recognises the importance of encouraging employees to report suspected misconduct
• arranging for the suspected employee to be temporarily assigned duties in another location (ensuring that there is no presumption of prejudging the case)
• ensuring that any employee making a witness statement in a misconduct case is aware that they are entitled to whistleblower protection and may request a risk assessment
• where a risk assessment supports it, the reporting employee or witness can be assigned other duties for which they are qualified in another location
• making special provision to ensure the fairness of any selection process involving the employees at risk of victimisation or discrimination by, for example, appointing an independent member to the selection committee
• 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.

Key points for agency guidance material

Agency guidance material could include information, some of which can be drawn from this chapter, on the following:

• encouragement to employees to report suspected misconduct as part of their duty as an APS employee
• the different options available to employees to report misconduct
• the protections available to employees who report misconduct
• how to treat or collect any evidence prior to reporting. While this is not discussed in this guide, it could include advice that employees:
  • make notes on what they have seen or heard
  • provide written records on any action the employee has taken
  • keep any relevant documents and not make any written annotations on them
  • report the matter but otherwise keep the matter confidential.

4. Considering a report of suspected misconduct

Agencies need to have procedures in place for considering reports of suspected misconduct. The initial decision on what approach to take to deal with suspected misconduct when reported is a key one.
Often it will be the supervisor/manager of the employee suspected of misconduct that, in the first instance, makes an assessment of the seriousness of the misconduct and the best approach to take to dealing with it. This is because the misconduct may have been observed by the manager themselves or another employee may have reported it to them—for example, a report by an employee about their supervisor or another employee. If the misconduct has been reported by another employee, that employee needs to be advised about how their report will be handled and their rights to protection from any victimisation or harassment.
As discussed in this chapter, not all suspected misconduct is best dealt with via the agency's misconduct procedures. In less serious cases, for example, or in some cases involving personality clashes, other approaches such as using the performance management system or conciliation may be the most effective first option. Where appropriate, using other procedures can often resolve problems more quickly and effectively than by applying the misconduct procedures. This is discussed in Chapter 9 under the heading 'Avoiding unnecessary delay'.

Consistency of approach

Whatever approach the agency takes with regard to the various types of misconduct it must be broadly consistent across the agency, so that employees are given consistent messages about the agency's views on various types of misconduct. It is reasonable for employees in an agency to expect that the standards of behaviour required in each individual workplace will be essentially the same. There will be different approaches to some types of misconduct between APS agencies, however, because of the nature of their business and the greater risks posed by some types of conduct. In addition, section 15(3) of the PS Act makes provision for an agency head to establish different procedures for different categories of employees.
A common reason why inconsistent approaches to certain types of misconduct arise within an agency is that not all managers are fully aware of the agency's views on the seriousness of certain types of apparent misconduct, or of who has the authority to make decisions on how to deal with various types of misconduct.
One of the most effective ways of helping managers make consistent and appropriate decisions is to provide more detailed guidance about the factors to take into account in making the decision of whether to deal with the suspected misconduct through the agency misconduct procedures, or alternate methods.The use of practical examples that are meaningful in the context of the agency's business is a powerful tool and strongly recommended.
Another way of helping to ensure consistency is to make it clear in guidance material what level of manager is authorised to make a decision about how certain types of misconduct are dealt with.

Suspected misconduct where misconduct procedures may be appropriate

In considering whether or not to use the misconduct procedures, agencies should examine the nature of the suspected misconduct. As a general rule, agencies should use the misconduct procedures if it is likely that they would impose a sanction (either termination of employment, reduction in classification, re-assignment of duties, reduction in salary, a fine or a reprimand), if the suspected misconduct was determined to be a breach of the Code.

Whether to start a misconduct action

An issue that arises in the decision of whether to commence misconduct procedures is when to commence misconduct procedures.
Different issues of misconduct often raise greater or lesser difficulties in gathering initial evidence to assess whether there is a prima facie case. Matters become complicated if key employees are geographically dispersed or temporarily unavailable. To avoid or minimise the prospect of the employee destroying or removing evidence, some agencies may decide that information gathering should be completed as far as reasonably practicable before the employee is advised that they may be under any suspicion.
Agencies should aim to keep the preliminary investigative phase as short as possible without compromising the quality of the work undertaken. Agencies should seek to avoid duplicating the formal investigation prior to deciding whether to notify the employee that they were suspected of misconduct. Advising employees earlier rather than later can also help to avoid the undesirable situation of the employee finding out through unofficial sources that an initial investigation is underway. Timeliness is discussed in more detail in Chapter 9 under the heading 'Avoiding unnecessary delay'.
In serious cases where any delay in acting raises a real risk that the safety of employees or clients may be compromised or evidence may be destroyed, it is appropriate to decide to commence misconduct proceedings as quickly as possible. Prompt consideration should also be given to suspending the employee from duty or assigning them to other duties. This is discussed later in this chapter.
How the evidence is assessed, or whether further evidence is sought, will be up to the discretion of the employee authorised to make the decision about whether to commence misconduct procedures but that decision maker must keep in mind that an investigation has not yet commenced.The test to apply in deciding whether to institute a Code investigation is not whether the evidence establishes that a breach of the Code has probably occurred, but rather whether the allegations are sufficiently substantial as to warrant further investigation.

Alternatives for addressing conduct-related concerns

Once the decision has been made that it is not appropriate to handle the suspected misconduct through the agency procedures, managers have a number of alternative options:

• deal with the conduct through the agency's performance management system if appropriate, including specifying the standard of future conduct required
• improve the employee's awareness of required standards of conduct such as by access to training
• close monitoring of, and advice/assistance on, future conduct
• provide appropriate counselling
• consider assigning new duties—however, care must be taken to ensure that this is not perceived as a de facto sanction imposed without a proper process
• for conduct involving interpersonal issues, alternative dispute resolution approaches such as mediation or conciliation.

Records of employee discussions

Where managers/supervisors take one of the alternative approaches set out above, it is advisable that the key discussions and outcomes be documented. A short note should be prepared recording the content of the meeting, particularly where agreement is reached on any conduct and the remedial action, if any, to be taken. The note should preferably be signed by both the employee and the manager/supervisor, with copies being retained by both parties. The agency copy should be retained in accordance with agency policy. Notes concerning any follow-up discussions/counselling should also be prepared, agreed and retained.
The employee should be informed that where an employee's conduct is maintained at a satisfactory level, the records relating to counselling or other action will be destroyed in accordance with agency policies and that the records will only be relied on if further allegations of misconduct arise during the document retention period specified in the agency policy.

What to do if conduct does not improve or deteriorates

Where alternative action does not satisfactorily resolve concerns about an employee's conduct, and/or a further suspected breach occurs, careful consideration should be given to whether the misconduct procedures should be applied on the basis that a repeating or continuous pattern of suspected misconduct has developed, albeit that the initial incident(s) were relatively minor or did not warrant action under the misconduct procedures.

Deciding whether to reassign duties or suspend

Action to temporarily re-assign duties, or to suspend, may be taken at any time prior to, or during, the process of determining whether a breach of the Code has occurred and applying a sanction. Generally, given the nature of the decision, it will be made at much the same time as the decision to commence misconduct procedures. If a decision to assign other duties or suspend is made later during the process, it would normally be linked to a further development (e.g. a repeat of the misconduct) or if substantial new allegations came to light during the investigation.
In exercising these powers, it is important for the decision maker not to prejudge, and not to be seen to prejudge, whether misconduct has occurred. Reassignment or suspension are not to be used as sanctions.
It is important that agencies determine which employees may make the decisions regarding reassignment or suspension. Whoever is given the authority to make these decisions must be given delegated authority to do so (section 78(7) of the PS Act, regulation 3.10). A checklist for managing the suspension of employees is included in Appendix 3.

Re-assignment of other duties

As an alternative to suspension, the agency may decide that it is more appropriate to temporarily re-assign the employee's duties, particularly since at this stage misconduct is only suspected.¹³ The power to do so is the general assignment of duties power in the PS Act (section 25).
The factors to take into account are similar to the factors relating to whether or not to suspend the employee—that is, the public and the agency's interests. The maintenance of a cohesive and effective workplace is a relevant consideration in relation to the reassignment of duties. It may also be appropriate to have regard to the circumstances of the affected employee and in some cases the circumstances of their family (e.g. should relocation to another region be involved).
In order to ensure that all relevant facts are to hand before making a decision on reassignment, it is good practice to notify the employee of the proposal and invite comment before making a decision. Sometimes the situation will not allow for that opportunity, in which case the employee should be invited to comment on the reassignment and if necessary, a different arrangement (including suspension from duty) can be contemplated.
Employees who are assigned to different duties as an alternative to suspension from duty are not entitled to seek review of the reassignment decision under section 33 of the PS Act unless the reassignment involves a reduction in classification, relocation to another place, or being assigned duties that the employee cannot reasonably be expected to perform.

Legislative framework for suspension

Section 28 of the PS Act and regulation 3.10 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), (3))
• where the suspension is without remuneration, the maximum period is generally to be no more than 30 days. A longer period of suspension without remuneration is permitted only where there are exceptional circumstances (regulation 3.10(3))
• continuing suspension must be reviewed at reasonable intervals (regulation 3.10(4))
• suspension must end immediately when 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 cease 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)).

In what circumstances should employees be suspended?

The starting point for considering whether to suspend an employee is the public interest and the agency's interest.
Public interest considerations might operate in favour of suspension from duty where the alleged conduct poses a risk to:

• the safety of members of the public (including agency customers or clients)
• the integrity of data about members of the public held by the agency
• the public revenue
• the confidence of the public in the APS as a whole.

An agency may choose suspension from duty where:

• there is a risk that an investigation of the allegation may be compromised by the employee's presence in the workplace
• there is a risk that the suspected misconduct 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

The usual practice is to inform, in writing, the employee suspected of misconduct, of the agency's intention to suspend them and the reasons for this proposal, and to give the employee a reasonable opportunity to respond before the decision is taken. In some circumstances it may be appropriate for the suspension to immediately come into effect without first inviting the employee to comment. For example, where there is an imminent serious threat to the safety of other employees if suspension were to be delayed, or where there is a real possibility that the employee will destroy or otherwise tamper with evidence. Even where the suspension immediately comes into effect, the accused employee should be advised of the reasons for this decision and notified that the suspension will be immediately reviewed once the employee has had a reasonable opportunity to respond. The letter should make clear that the decision to suspend the employee is not a prejudgement of whether the employee has committed a breach of the Code.
If an employee provides information or arguments that have a bearing on whether they should be suspended from duty, then the agency head or delegate should take that material into account when deciding whether to suspend the employee, or in the course of reviewing a suspension.

Remuneration

The agency head or delegate is able to decide whether a suspension is with or without remuneration.¹⁴
Factors to be considered in making this decision might include:

• the seriousness of the suspected misconduct—suspension without remuneration would usually be appropriate in cases of suspected misconduct where the sanction imposed might be termination of employment if the suspected misconduct was determined to be a breach of the Code
• obligations under the Financial Management and Accountability Act 1997—should someone who is not working still be remunerated?
• whether suspension without remuneration would give the employee an added incentive to cooperate with the investigation
• the estimated duration of the misconduct action.

In considering suspension with or without remuneration, procedural fairness considerations apply and the accused employee should be advised of the reasons for any proposed decision and given a reasonable opportunity to respond.
If an employee provides information or arguments that have a bearing on whether they should be suspended from duty with or without remuneration, then the agency head or delegate should take that material into account when deciding whether to suspend the employee with or without remuneration, or in the course of reviewing a suspension.
Under both the common law and the Administrative Decisions (Judicial Review) Act 1977 a decision maker (that is, an agency head or delegate) is required to take into account all relevant considerations and must not rely on irrelevant considerations in reaching the decision. For example, where a decision maker is having regard to whether the issue of hardship would be a relevant consideration, hardship would generally be a relevant consideration. This is supported by the fact that an agency head has discretion whether to make a suspension with or without pay. This discretion means that an agency head can balance the severity of the breach against the severity of the suspension. In certain circumstances the hardship imposed may well be disproportionate to the breach. On the other hand, a breach may be so serious that an agency head may attach little weight to the issue of hardship when reaching the decision.
In relation to the extent to which an employee needs to demonstrate hardship, it would be in the interests of an employee to demonstrate it as fully as possible, for example, the onus is on the employee to substantiate their claim for hardship, by providing as much evidence as possible in support of their case. If the employee did nothing more than merely assert hardship, then an agency head may not attach much weight to that consideration when reaching his or her decision. For procedural fairness, it might be worthwhile requesting further information about the nature of the hardship. For example, where an employee claims that their bank would take possession of their house, then the decision maker might seek a statement to this effect from their bank and/or a signed statutory declaration from the employee and subsequently might attach greater weight to that consideration in reaching the decision.
As suspension without remuneration should not normally extend beyond 30 days, the misconduct action in such cases should be completed as quickly as possible, consistent with a proper consideration of the issues.
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,¹⁵ but could include:

• where a strong prima facie case of serious misconduct is apparent
• where a finding has been made of a serious breach of the Code and a sanction is yet to be imposed—any delay between a determination and imposing a sanction should be minimised
• 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 conviction and is waiting to have the appeal heard.

An employee who is not receiving remuneration may be able to access paid leave credits during suspension—this is up to the discretion of the agency although it may depend on the provisions of the agency's Collective Agreement or the employee's Australian Workplace Agreement. Some agencies allow suspended employees to access accrued recreation or long service leave credits, but not personal or carer's leave. The rationale for drawing this distinction is that personal and carer's leave are generally available where an employee is prevented by virtue of illness or caring responsibilities from attending for duty. Where an employee is suspended from duty they are not obliged to attend for work and therefore illness or caring responsibilities do not prevent them from doing so.
An agency may consider whether an employee who was suspended and subsequently found not to have breached the Code, is able to seek reaccreditation of any salary foregone, or leave applied for, during the period of suspension. Section 73 of the PS Act contains a mechanism for the approval of payments to employees in 'special circumstances', which might provide the authority for any compensatory payment. Section 73 powers have been delegated to agency heads and may not be exercised by anyone else within the agency.
An employee who is suspended may seek outside employment while the suspension is in place. An agency's policies and procedures on external employment generally would apply.
Where an employee is suspended, for ease of contact—for both the employee and agency— it is suggested that the agency ensure that it has up to date contact details for the suspended employee.

Right of Review

Agencies should provide guidance to employees on the distinction between the right to have their suspension from duty reviewed at regular intervals (regulation 3.10(4)) and the right to have an APS action reviewed (section 33 of the PS Act). Review of suspension has prospective effect, in that it examines whether an employee should continue to be suspended from duty from the review point forward. It does not involve a reconsideration of the original decision to suspend the employee. Review of action, by contrast, is retrospective, in that it involves re-examination of the original decision. While it is not mandatory, it is good practice to advise the employee of their right to seek a review of the decision to suspend under the review of actions provisions of the PS Act. This is discussed in Chapter 8, Review of Actions.
To ensure that employees are fully aware of their review rights, agencies should consider including the following paragraphs in any advice to the employee on the suspension decision:

If you think the decision to suspend you from duty is wrong, you are entitled to ask that it be reviewed by another person. To make a request for review, write to [the agency head], stating briefly why you seek a review, and what outcome is sought. Requesting a review of this decision will not operate to stay the decision.
In any case, I am obliged to review your suspension at regular intervals. I propose to review your suspension after [date]. If you want me to consider any material other than that discussed above in the course of reviewing your suspension, you should ensure that it reaches me by [same date]. I will write to you again after [same date] to advise you of the outcome of my review. If you want me to review your suspension before then, write to me and explain why you are making that request.

Key points for agency guidance material

Agency guidance material could include information drawn upon from this chapter on the following:

• identifying who is responsible for deciding whether suspected misconduct will be handled through the misconduct procedures or alternate procedures
• providing examples of suspected misconduct that the agency considers should usually be handled under the misconduct procedures
• identifying alternative methods of handling suspected misconduct
• determining when a misconduct action should commence once a report of suspected misconduct has been received
• the recordkeeping requirements for employee discussions/counselling sessions and what to do if the employee's conduct does not improve or deteriorates further
• circumstances in which an employee may be suspended, with or without pay, or assigned other duties
• procedures for managing suspension and assignment of duties that identify who is responsible for decision making.

5. Investigative process

This chapter focuses on the decisions that need to be taken once an agency has decided to conduct a misconduct action under the agency procedures established under section 15(3) of the PS Act. Agencies should also refer to the section in Chapter 9, 'Avoiding unnecessary delays'. For the purposes of explaining the different stages of misconduct action, the investigative process has been separated from the decision-making process.

Selecting a decision maker

The first step in the process is to select the decision maker who will determine whether there has been a breach of the Code and determine whether the decision maker will conduct the investigation or use a separate investigator. Generally, the agency section 15(3) procedures will identify the classification/position of employees that have the authority to appoint the decision maker. The decision maker should be appointed in writing.
The responsibilities of the people undertaking the respective roles need to be made clear in guidance material.

Independent and unbiased decision maker

The decision maker selected to make a determination as to whether the misconduct occurred and whether it constitutes a breach of the Code would preferably be someone relatively senior within the agency who is familiar with the agency's business and who is able to access information on how similar types of misconduct have been handled in the recent past. The employee making this appointment must take reasonable steps to ensure that this person is, and appears to be, independent and unbiased.
A person may reasonably be thought to be biased if 'in all the circumstances the parties or the public might entertain a reasonable apprehension that (the decision maker) might not bring an impartial and unprejudiced mind to … the question involved.' (Livesey v New South Wales Bar Association (1983) 151CLR 288 at 293-294)).
Following are some examples of where bias could, or could be thought to, arise:

• a decision maker has a personal interest in the decision
• a decision maker has a work or personal relationship with the employee being investigated, or witnesses
• a senior manager makes comment on the case in a manner which could be perceived to influence the more junior decision maker
• a decision maker is a witness in the matter.

Care also needs to be taken to avoid perceived bias if a decision maker has previously investigated the matter in another capacity (e.g. a privacy investigation or a review of action). It may still be possible to select them. While they may have a view about what had happened, they may not necessarily hold an opinion as to whether this constituted misconduct.
If there is any doubt about the suitability of a decision maker, it is wise to make another choice. It may be appropriate for a person from outside the agency or outside the APS to be selected, if it is not possible to satisfy the 'freedom from apparent bias' from within the agency.
It is also recommended that the decision maker not be informed of any prior misconduct on the part of the employee who is suspected of misconduct. This allows the 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.

Investigation skills

Although investigating misconduct is sometimes straightforward if the facts and circumstances of the case are clear, it can be difficult and requires judgement, attention to detail and established investigative skills. The choice of the decision maker is an important one. It is strongly recommended that the decision maker appointed to undertake the determination of whether a breach of the Code has occurred has been trained in the required skills and processes and/or has experience in such a role, including investigation skills and administrative decision-making.
The decision maker may decide to use someone with specialised investigative skills to assist them in their role. The decision maker retains final responsibility for adhering to the agency's procedures and processes including procedural fairness.The decision maker should be actively involved in the planning of the investigation and in ensuring the quality of the processes. It is the decision maker who makes the determination as to whether the Code has been breached—not the investigator unless they are the same person. They must be satisfied:

• with the quality and quantity of the evidence that has been collected
• with the way it has been collected
• that mandatory procedural steps have been observed.

Investigators—internal or external?

Agencies can use internal or external investigators (for example, the services of a private consultant or an employee in another APS agency) to assist with investigating misconduct.
In either case, it is important to provide clear instructions to investigators about their role (for example, will they be asked to make a recommendation or a determination about whether a breach has occurred or not?, will they be required to produce a written report?) and to ensure that their brief:

• identifies mandatory procedural steps (which must include the agency's section 15(3) procedures and any guidance material prepared by the agency that must be observed)
• identifies who will undertake related activities
• provides information about the agency
• details any quality requirements
• outlines milestone reporting required throughout the process, and
• outlines required timeframes.¹⁶

Further, all important in any investigative process is the need to ensure procedural fairness.¹⁷
An external investigator might be appointed when:

• the circumstances of the suspected breach of the Code are such that the employee under suspicion might reasonably claim that everyone in the agency is the subject of apprehended bias
• the agency cannot afford to divert any suitable person from their usual duties to attend to the investigation in a timely manner
• no-one in the agency possesses the skills and experience required to properly investigate the allegations
• a cost-benefit analysis indicates that the most efficient course would be to appoint an external investigator.

Deciding on the scope of the investigation

Agencies need to provide general guidance on the choice of which element(s) of the Code the employee is suspected of breaching but should avoid fettering the discretion of the decision maker by tasking them to establish whether specific elements of the Code have been breached. The decision maker should be able to have regard to all of the elements of the Code and must notify the employee of which particular elements may have been breached, and invite comment, before making a finding. It is important to choose the relevant element(s) of the Code—the wrong choice can complicate or prolong matters— and to assess whether it is more appropriate to choose one element of the Code or whether to use a number of elements.
There are two main approaches available when considering the elements of the Code.

• A decision maker may opt to build in multiple elements of the Code depending upon the suspected misconduct so that the final determination taken is more exhaustive.
  This approach also helps prevent situations where there is suspected misconduct but it is not immediately obvious what is the extent of the suspected misconduct. For example, inappropriate use of the internet could be a breach of element 13(8) requiring proper use of Commonwealth resources but following investigation it could also involve a breach of a lawful direction (13(5)), be found to affect the integrity and reputation of the APS (13(11)) and, if the conduct involved accessing material such as child pornography, amount to a failure to comply with an applicable law (13(4)).
• A decision maker may choose one or two elements of the Code that are most directly relevant to the suspected misconduct. A targeted approach is more consistent with the concept that misconduct action in the APS have a corrective function. It is easier to explain to an employee that their conduct was wrong or inappropriate, if the approach elements of the Code applied are obviously relevant to the suspected misconduct. Even if the case can be made for a number of elements, adding extra elements can create an impression of technical abstraction and be unnecessarily resource and time intensive, given that the agency bears the burden of proof in relation to each separate element of the Code that the employee is suspected to have breached.

Rather than adopting one approach only, the agency's decision maker should start with the flexibility to decide on the approach that best suits the nature of the suspected misconduct. For example, if the suspected misconduct, if proven, is likely to lead to a termination decision, then selecting a larger but relevant number of elements may assist in defending an unfair dismissal application, should the AIRC not uphold breaches of some identified elements of the Code.
Whichever approach is adopted, the agency decision maker has an obligation to identify every element of the Code that they consider may have been breached before they make the final determination and to ensure that the employee has been notified of, and provided with appropriate opportunity to comment on, the decision maker's views in relation to each of those elements of the Code. If a decision maker chooses to apply as many elements of the Code as possible and the suspected misconduct is proven, then the overall sanction should reflect the seriousness of the behaviour, not the technical question of how many elements have been breached.
If the suspected misconduct involves criminal behaviour, the investigation may need to be handled differently. This is explored in more detail in Chapter 2 under the heading 'Misconduct in the workplace that may also be a criminal act'.

Advising an employee of the commencement of misconduct proceedings

As soon as the decision to commence a misconduct action has been taken and the decision maker has been selected the employee suspected of misconduct should be notified in writing.
The letter should explain in detail:

• the misconduct they are suspected of committing
• the element(s) of the Code they are suspected of breaching
• the possible sanctions that may apply
• who will be investigating the misconduct (if different from the decision maker)
• the decision maker who will make the determination
• how the process will proceed (providing them with a copy of the agency's guidance material and procedures), including their rights.

This letter would normally be signed by the employee who has authorised the misconduct proceedings, the decision maker or the investigator in accordance with individual agencies guidance. A copy of this letter should be placed on the misconduct file.
It will not always be possible to give the employee complete details of their suspected misconduct at the outset of an investigation. In such cases, the letter should reassure the employee that the investigation is only just beginning, that they will be given further detail about the allegations as the investigation progresses, and that they will be given an opportunity to comment on the detailed allegations before any finding is made as to whether the Code has been breached.
If at any time during the investigation it becomes clear that the element(s) of the Code that the employee is suspected of breaching should be changed in any way the employee should be informed in writing as soon as possible. Such correspondence should be added to the misconduct file.

Investigating whether misconduct has occurred

The investigation will provide the backbone of the agency's case about the suspected misconduct. Mistakes made in this part of the process can lead to an unfair outcome and/or decisions being overturned on review.
The person who undertakes the investigation must have the skills and resources to do the task (see discussion under heading 'Selecting a decision maker', above). To ensure a quality process, it may be necessary for an investigator to be released from some or all of their normal duties in order to conduct the investigation. 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.
The material on investigating misconduct in this good practice guide does not have the scope to provide a detailed 'how to' guide for conducting investigations. Rather, it highlights key issues and procedural requirements for investigations of misconduct.

Procedural fairness and other administrative law principles

All investigations should be conducted consistent with the requirements of procedural fairness and other administrative law principles. In the context of decisions associated with suspected of misconduct, procedural fairness generally requires that:

• the employee suspected of breaching the Code must be informed of any allegations against them
• the employee must be provided with an opportunity to properly respond and put their case, in accordance with the agency's section 15(3) procedures before any decision is made (the 'hearing' rule)
• the decision maker must act without bias or an appearance of bias (the 'bias' rule)
• there must be facts or information to support adverse findings (the 'evidence' rule).

The hearing rule does not require that an employee is provided with every document relevant to the allegation, but the employee must be sufficiently aware of the nature of the case against them in order to respond properly. This may require production of documents in some circumstances. In other circumstances it will be adequate to summarise evidence or statements being considered. Some agencies' section 15(3) procedures may specifically require that the employee be given access to every document that is to be relied on in reaching a decision.
Other administrative law principles must be considered. It is important that decision makers understand that a finding that an employee has breached the Code may be invalid if the decision maker:

• has not been appointed under the agency's section 15(3) procedures
• fails to comply with the section 15(3) procedures
• acts for the wrong 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.

Formality and timeliness

The investigative process should be carried out with as little formality as possible. Informality, however, must not be at the expense of satisfying procedural fairness or other administrative law principles.
The investigative process should also be undertaken expeditiously—it is in the interests of the agency and the suspected employee to resolve the issue as quickly as possible. Timeliness is discussed in greater detail in Chapter 9 under the heading 'Avoiding unnecessary delays'.

Planning the investigation

Prior to beginning the process of investigating the circumstances of a misconduct case, it is good practice to take the time to plan the process. In some cases it will, in fact, be necessary to continue or adapt planning as the case progresses. The more detailed planning should probably be done close to the time of the investigation.
Issues to consider include:

• 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?
• who needs to be interviewed?
• how should the issue of confidentiality be handled in relation to the identity of any witnesses or the identity of the employee who reported the suspected misconduct
• any other sources of relevant evidence that need to be followed up (e.g. information and communications technology records, attendance records)
• developing a timeline for the investigation
• whether legal advice is needed in a complex case.

Gathering the evidence

Evidence can be collected from various sources. In some cases (e.g. cases involving suspected improper access to personal information or improper use of email or internet facilities) the investigation is likely to be founded on physical evidence of conduct (such as records of computer use by the employee) rather than an opinion formed following interviews.
Sometimes evidence gathering involves interviewing the accused employee and witnesses. The investigator should establish that the employee understands what will happen under the misconduct procedures and their rights and the purpose of any interviews. They should also indicate that the objective of the misconduct action is to establish facts and gather all relevant information before any decision about whether the employee breached the Code, and that the employee will have the opportunity to respond to the evidence against them before the decision is made.
The investigator should also:

• provide the interviewee with sufficient notice of any meeting to allow for adequate preparation and may allow the interviewee to be accompanied by another person to provide support. Agency section 15(3) procedures sometimes provide specific direction about allowing support people to attend interviews
• consider whether it would be appropriate to make available for consideration prior to the meeting any documented information that will be discussed
• plan the questions to be asked so as to avoid making assumptions, asking vague questions or asking questions that might influence how responses are given
• wherever possible, seek to reach agreement on relevant facts/circumstances, and seek corroborating evidence from the interviewee
• decide prior to the interview whether it is to be audio-recorded (in which case a copy of the recording should be made available to the interviewee) or whether a written record of interview is to be prepared (in which case it may be convenient to use a note-taker)
• indicate that a record of the discussion will be prepared and will be provided to the interviewee. The objective should be to have jointly agreed records on the content of all meetings—however, if this cannot be achieved the area(s) of disagreement should be identified and documented
• advise other parties to the investigation such as the complainant and any witnesses that personal information relating to them may be disclosed to the employee and others where necessary and appropriate. Any personal information about the complainant or witnesses should be handled in accordance with the relevant agency's obligations under the Privacy Act 1988.

When interviewing the employee suspected of breaching the Code, the investigator should also:

• in accordance with the hearing rule and the relevant agency's section 15(3) procedures, where necessary and appropriate, show the employee evidence given or statements made in relation to the suspected misconduct and allow them to comment on or make suggestions to correct them
• ensure that the employee has full opportunity to state his or her case including any extenuating circumstances.

If, after interviews, new or conflicting evidence comes to light, the employee must be advised of the new evidence if it is relevant to the determination, and be given the opportunity to respond. Any evidence gathered during the investigation (records of computer use, audio recordings of interviews, written records of interview, written submissions made by the employee or other documentary material) must be placed on the file.

Reviewing the evidence

In reviewing the evidence it is advisable to keep the following issues in mind.

• Has the accused employee been given the opportunity to respond to new or conflicting evidence?
• Have other witnesses been questioned about evidence in conflict with their witness statements?
• Have any plausible explanations provided by the employee or witnesses been considered?
• Do any extenuating circumstances have a bearing on the question of breach (i.e. do they alter the likelihood that the employee did actually engage in the conduct alleged to have breached the Code), or are they more properly considered in the context of deciding what (if any) sanction to apply?
• Is any evidence missing and is there enough reliable evidence to be able to draw a reasonable and balanced conclusion?
• Only consider evidence that is relevant to deciding whether misconduct has occurred.

When making a judgement about the reliability of the evidence:

• primary sources of evidence are preferable to secondary sources (e.g. an original document is better than a photocopy)
• disputed facts should, where possible, be corroborated by other evidence
• give consideration to the value that should be placed on hearsay evidence
• consider the credibility of the witnesses—inconsistencies, honesty, possibility of collaboration or improper purpose.

Investigation report

The results of the investigation should be written up in a report that:

• outlines the nature of the misconduct
• sets out the steps taken to collect evidence and information
• presents the evidence in a balanced way (i.e. including evidence both for and against the employee) including the accused employee's response to the allegations and the employee's response to any new or conflicting evidence that was uncovered in the course of the investigation
• outlines the conclusions that are able to be made on the available evidence including any inconsistencies in the evidence or issues that remain unclarified. These conclusions must flow logically from the evidence and provide a view or a recommendation as to whether the Code has been breached
• clearly identifies any extenuating circumstances
• includes reasons why the action or behaviour amounted to a breach of the element or elements of the Code.

Evidence does not support a case of misconduct

In some cases it may become clear early in the course of the investigation that no breach has occurred or that there will be insufficient evidence to base a finding that a breach has occurred. If this happens the decision maker should notify the employee suspected of misconduct as soon as possible. Such notification should be placed on the misconduct file.
It may be appropriate for the agency to take some action, where the employee has suffered any loss of reputation because it became known they were suspected of misconduct if it is clear that no such misconduct occurred (e.g. with the consent of the employee a notice be sent to all relevant employees informing them of the outcome). If relevant, an agency may consider action against any other employee who has falsely and maliciously reported misconduct.

Key points for agency guidance material

Guidance for decision makers and investigators should:

• outline agency procedures for appointment, alert the decision maker (and investigator if the roles are separated) to the need to be vigilant about circumstances that might give rise to claims of bias, and what to do if such claims are made
• direct the decision maker (and investigator if the roles are separated) to comply with the agency's section 15(3) procedures
• describe agency procedures for conducting an investigation including advice on issues such as preparing records of discussion and taking witness statements
• provide advice 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 legislative requirement (generally reiterated in the agency section 15(3) procedures) that the investigation should 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 prior to commencement and, subsequently, in taking the time to review the process to ensure all available relevant evidence has been collected
• note the important principles in weighing up the evidence and the key features of the written report
• cover the handling of situations where evidence does not support misconduct having occurred
• provide contact points for support and advice.

6. The determination and sanction

This chapter focuses on determining whether or not misconduct has occurred and imposing a sanction on an employee if it has been determined that the employee has breached the Code.
For the purposes of explaining the different stages of the process for handling misconduct, the decision-making process and the imposition of a sanction have been separated from the investigative process. Depending on agency processes, the decision maker may or may not have been involved in the investigation and may not be the person to impose the sanction.

Role of the decision maker

Once the decision maker considers that the investigation process has been completed in accordance with the agency procedures and that all relevant evidence has been obtained, a determination should be made as to whether or not misconduct has occurred.
Agencies should ensure that there are procedures in place for obtaining assistance or legal advice, should the decision maker consider there is an element of uncertainty or risk in the process.
Given the importance of this role, agencies may wish to consider providing some training in administrative decision-making such as how to handle evidence or how to reason through to a defensible conclusion.

Relationship with a separate investigator

When a separate person has undertaken the investigation into suspected misconduct, the decision maker must:

• play an important quality control role by reviewing the process, paperwork and recordkeeping of the case up to this point to ensure correct procedures have been followed
• be satisfied that the investigation has brought them to a point where they can make a fair, balanced and conscientious decision. Identifying and rectifying flaws at this stage is much easier than dealing with the matter in a possible review process.

In the case where a separate investigator has provided a recommendation regarding whether a breach has occurred, the decision maker will need to ensure that they separately and independently exercise their decision-making power before forming any conclusion.
It is open for the decision maker to take an additional step of writing to the employee suspected of misconduct setting out the available evidence, indicating why the evidence supports a determination that they have breached one or more of the elements of the Code(if this is the case), and asking them for any further comment they wish to make prior to them making their determination. If the decision maker is confident that the investigation has been properly conducted and procedural fairness has been observed, this would not be necessary.

Standard of proof

The standard of proof used in determining breaches of the Code is 'the balance of probabilities'. The decision maker must be satisfied that a breach is more probable than not. This civil standard of proof differs from the criminal standard of proof which is 'beyond reasonable doubt'.
The standard of proof applicable to findings of fact or findings that the Code has been breached is the civil standard. That is, findings should be based on the conclusion that it is more probable than not that the matter found to have occurred, in fact occurred. However, before reaching a finding the decision maker needs to have regard to the gravity of the adverse consequences which might flow to the employee. In that sense, 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 referred to the need to act with much care and caution before finding that a serious allegation is established.

Preparing a decision record

Once all evidence has been collected and reviewed, the decision maker should prepare a written record of their decision which includes:

• a summary of any additional evidence obtained by the decision maker, or a summary of the evidence obtained if the decision maker was also the investigator
• consideration of the report prepared by the investigator, if the two roles are separate, and any additional evidence, noting areas where the investigator's analysis and recommendations are accepted, and areas where they are not (and why)—to avoid an administrative burden and to reduce the scope for errors, the investigator's report could be attached
• a decision as to what happened
• a decision as to whether misconduct has occurred, and if so which elements of the Code have been breached
• the reasons for the decision.

Finding of no breach

If it is clear at this stage that that no breach has occurred, or that there is insufficient evidence to support a finding that a breach has occurred, the decision maker should advise the suspect employee as soon as possible. Agencies may also need to take action to remedy a loss of reputation. This is discussed briefly in the section of Chapter 5 under the heading 'Evidence does not support a case of misconduct'.
Supervisors or managers should also identify any need for remedial action including training/ development and/or performance management measures.

Decision that misconduct did occur

If the decision maker decides that a breach has occurred, they should write to the employee informing them of the final decision. The letter should:

• enclose a copy of the investigator's report and the decision maker's decision record
• inform the employee of the name of the person who has been given the authority to determine any sanction, reiterate the range of possible sanctions, and what the next steps of the process will involve
• notify the employee of their right to seek review of the findings under section 33 of the PS Act, noting that seeking a review will not operate to stay the finding of breach or consideration of the sanction.

Employee moves to another APS agency before a determination or a sanction

If an employee is suspected of misconduct and that employee moves to another APS agency before a determination is made, Direction 5.6 provides that the misconduct proceedings be undertaken in the new agency. If action had not commenced in the old agency, then misconduct procedures should commence in the new agency in accordance with the new agency's misconduct procedures. If misconduct proceedings were underway before the move, the new agency should recommence misconduct proceedings in accordance with its own misconduct procedures.
It would be open to the agency head of the new agency who decides to initiate misconduct procedures to utilise the expertise of employees from the old agency in the investigation if required.
Where an employee moves after a finding of breach but before application of sanction, it is not necessary for a fresh investigation to be carried out.The new agency head can apply a sanction, in accordance with the new agency's procedures, on the basis of the losing agency's finding of breach. An agency head's power under section 15 of the PS Act to apply a sanction extends not only to imposing sanctions on employees in their agency, in respect of findings of breach made under that agency's Code of Conduct procedures, but also in respect of findings made under another agency's Code of Conduct procedures.

The appropriate sanction

Once a determination has been made that an employee has breached the Code, the process of determining an appropriate sanction should begin.

Imposing a sanction

A sanction can only be imposed on an employee who is found by a decision maker appointed under the agency's section 15(3) procedures to have breached the Code.
The person who imposes the sanction must hold a delegation from the agency head of their powers under section 15(1) of the PS Act. Advice from the Australian Government Solicitor suggests the person imposing the sanction might usefully be delegated powers 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 is found (under procedures established under section 15(3) of the Act) to have breached the APS Code of Conduct, the sanctions set out in section 15(1) of the Act.

This gives the sanction delegate indisputable authority to impose the sanction of termination of employment (under section 29 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 section 15(1) of the PS Act.
Agencies need to consider whether they wish to separate the two roles:

• determining if misconduct has, in fact, occurred
• imposing an appropriate sanction.

Separating these roles may assist in minimising procedural flaws and provide a safeguard to the administrative law requirement about not having regard to irrelevant considerations.
Having separate decision makers for these issues would not prevent the person deciding on whether a breach has occurred also being tasked with recommending a particular sanction to the appropriate decision maker. However, the person holding the sanction power would need to exercise that power on the basis of their own consideration of the facts and not by blindly adopting another person's recommendation(s) as the sanction delegate is providing an important overall quality assurance role.
It may not always be necessary to separate out the decision about sanctions in all cases.
The risks, in straight forward cases involving less serious misconduct, of using the same person for making the decision on whether a breach has occurred and also deciding the sanction, are significantly smaller.
The separation of roles may also be difficult in smaller agencies. When the role of determining if there is a breach is combined with determining the sanction, extra care must be taken when imposing a sanction so that only those matters relevant to deciding the sanction are considered.

Role of sanction delegate

The role of the sanction delegate is one where they have been given the authority to determine a sanction from the range set out in section 15(1) of the PS Act. They exercise their power on the basis of their consideration of the facts.
Consistent with the Federal Magistrates Court decision in Walworth v Merit Protection Commissioner and Anor [2007] FMCA 24, it is preferable to adhere strictly to agency section 15(3) procedures for determining breaches of the Code of Conduct. While not every failure to comply with the section 15(3) procedures will render a decision invalid, where a sanction delegate (or anyone else, for example, the Merit Protection Commissioner) finds that section 15(3) procedures have not been adhered to (for example, a breach of the hearing rule or reasonable apprehension of bias), the relevant decision is likely to be invalid and consideration should be given to whether the process should be re-done before a different delegate.
The sanction delegate is unlikely to be able to formally revoke the breach decision, but could raise the matter with a relevant person within the agency. The only exception to this might be where there was unreasonable delay in coming to a decision. In such cases, re-doing the process would only further add to the delay. In an extreme case, the delay would invalidate the decision—in Lee v Jacka [1994] FCA 1381, the Federal Court held a decision to be beyond power because it was not exercised within a reasonable period.
That said, an invalid decision (that is, the original one), is still invalid. The judgement would be whether further delay would in itself render the decision invalid. It may be that in a case of a lesser but still undesirable delay, it would not be unreasonable to take the delay into account as a mitigating factor. Where these circumstances arise agencies should seek legal advice.

Consistency of sanctions

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 clearly not be any simple, 'formula driven' approach to setting a sanction, and differences in sanctions between cases should reflect the particular circumstances of both the misconduct and the employee. Whilst striving for consistency in imposition of sanctions is desirable, some degree of variation is clearly appropriate.
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 HR and/or legal resource that can be consulted by decision makers
• establish internal databases of cases and sanctions, and indicate that they should be consulted when determining a sanction.

Using a database to monitor cases and imposition of sanctions also assists strategic management of misconduct issues at the agency level (e.g. by identifying trends in types and numbers of misconduct).

Procedural fairness and notifying the employee

Provisions in the PS Act and Directions emphasise the need to ensure procedural fairness in relation to the making of a determination that an employee has breached the Code. However, the legal principles of procedural fairness also apply to the imposition of a sanction. This imposes an obligation to advise the employee of their proposed sanction (either by letter or by providing a draft copy of the report outlining the decision) before the decision is taken, and the reasons for it, including any factual material proposed to be taken into account such as mitigating circumstances. This is to ensure the employee is given reasonable opportunity to comment, particularly on the accuracy or weight of any factual material.
Following receipt of an employee's comments concerning the sanction(s) that might be applied, the delegate needs to decide if the employee's comments contain any information that would lead him or her to reconsider the proposed sanction. After making the final decision on the appropriate sanction the delegate should ensure that this decision is documented including the reasons for the decision and a date for the sanction to come into effect. The delegate must take responsibility for ensuring that the employee is promptly notified in writing of the sanction decision.

Date of effect

A sanction's date of effect will not necessarily be the same as the date a sanction is decided, as this will depend on allowing enough time for necessary administrative action to be taken, for example, organising a reduction in classification.
The date of effect stipulated for a sanction is not delayed where an employee who is found to have breached the Code applies for a review of that decision by the Merit Protection Commissioner or, in the case of termination of employment, the AIRC.

Sanctions available

An employee with the delegation to impose a sanction may impose one or more of the following sanctions (section 15(1) of the PS Act):

• termination of employment
• reduction in classification
• re-assignment of duties
• reduction in salary
• deductions from salary, by way of fine
• a reprimand.

There is no provision in the PS Act for any other form of sanction, but other management action may be warranted 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.
A determination that misconduct has occurred does not necessarily mean that a sanction must be imposed. A decision can be taken that other remedial action may be appropriate.

Factors to be considered in determining the sanction

The purpose of the Code is to ensure effective administration and to maintain public confidence in the integrity of an organisation's processes and practices rather than to punish individuals. Sanctions should focus on reducing or eliminating the likelihood of future similar behaviour. Some guidance on what agencies may reasonably and lawfully do to utilise the processes for handling misconduct by way of sending a message of general deterrence to employees is included in Chapter 9 under the heading 'Quality assurance'.
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, and act as a deterrent to the employee and others. Where a sanction is too severe, it is likely to be seen as unfair by the employee concerned, and others (if they become aware of the outcome), and may be counterproductive. The sanction should focus on the seriousness of what the employee has done—the number of elements breached is not, of itself, a relevant consideration. Prior misconduct is also relevant to the imposition of a sanction and might usefully be taken into account by the sanction delegate 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
• it demonstrates that the employee is apparently unwilling to adhere to the standard of conduct expected.

The courts have indicated 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 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 is 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. need to maintain professional and ethical standards)
• extent to which the misconduct affects the reputation of 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 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 informal counselling within the last two years)
• the employee's attempts to stabilise any personal situations impacting on work (e.g. 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 off ender including:

• any loss of earnings already incurred by the employee as a result of suspension.

Mitigating factors

The presence of mitigating factors may warrant the imposition of a lesser sanction than might otherwise have been imposed. These can include:

• 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 the employee's disability, health or other factors may have influenced their conduct (although care must be taken not to set multiple standards)
• 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.

When particular sanctions may be appropriate

The person imposing the sanction must be satisfied that the sanction is proportionate to the misconduct.

Termination of employment

Termination of employment is the most severe of sanctions. It is appropriate only where:

• it is considered that the misconduct is so serious that it is no longer desirable that the employee should 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).

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 AIRC are in the box on the next page. Agencies should also refer to the Commission publication Termination of Employment.¹⁸

Reduction in classification

Reduction in classification is particularly appropriate where it is considered on the basis of the determined misconduct that 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 where an employee demonstrates by their misconduct that they should no longer have any supervisory responsibilities, or responsibility for authorising payments, it would be appropriate to effect a reduction in classification.
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. Discussions would need to take place within the agency to ensure that duties were available at the classification level proposed, before the sanction is imposed.
A reduction in classification cannot be made to operate only for a specific period. The practical impact of the sanction will evaporate immediately if the employee secures higher duties or a substantive promotion to their original level.
As part of a reduction in classification under section 15(1)(b) of the PS Act, it was intended that an employee's salary would be reduced.
Where a reduction in classification is imposed it is important to specify the salary point to which the employee's salary will be reduced. This is because the power to reduce classification in section 15(1)(b) does not include an express power to set salary at a particular point. The level to which an APS employee's salary should 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 should be reduced is not clear from the relevant industrial agreement, it is recommended that the agency head impose two sanctions—a reduction in classification 15(1)(b) and a reduction in salary under section 15(1)(d)—to ensure that the agency head has the power to reduce the salary to a particular point.¹⁹
Where an agency head has not relied on the powers in both section 15(1)(b) and (d) to specify a lower salary as well as to reduce classification, the safest approach would be to decrease the employee's salary to the top pay point in the lower classification (if the industrial instrument provides for lower pay points).

Examples of behaviour found to breach the Code confirmed as a valid reason for termination by the AIRC

Repeated and consistent failure, when acting in the course of APS employment, to treat everyone with respect and courtesy and without harassment (as required under section 13(3) of the PS Act):

• An employee was terminated after behaviour that included making blatantly false allegations, dogged refusal to acknowledge relevant policies and the Code, grievance- based 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 sections 13(1) and 13 (5) of the PS Act).
• In another decision, the AIRC 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).
• These appear to be the most common type of behaviour where terminated employees seek remedies through the AIRC, with behaviour involving treatment of colleagues, junior staff, supervisors and customers.

Serious failure to behave with honesty and integrity in the course of APS employment:

• 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 sections 13(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 and PR954267—also involved breach of sections 13 (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:

• directions in relation to return to duty (A Romanov-Hughes v Department of Defence, PR920194

Serious misuse of Commonwealth resources:

• 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 section 13(11)—and O'Neile v Centrelink, PR973658).

Re-assignment of duties

The sanction involving a re-assignment of duties at the same classification level (including to a different location) is intended to be used in situations where the integrity and effectiveness of the APS may be compromised if employees are not removed from a particular location or from their present duties, even though the conduct in question does not warrant termination of employment. 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
• where an employee is no longer trusted to take due care with a particular aspect of their current duties, for example, the handling of cash.

Where the reassignment involves a change of location, the sanction should be used only after careful consideration of all the circumstances, taking 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.
Discussions would need to take place within the agency to ensure that a position in another area/location was available, before the sanction is imposed.
This sanction could be imposed for a defined period if it incorporated a decision to return the employee to their former duties after a specific period.

Reduction in salary

A reduction in salary can be used to demonstrate the seriousness with which the employee's conduct is viewed. It may be particularly appropriate where the employee's conduct does not indicate that he or she understands the seriousness of the breach they have committed and as a signal about appropriate behaviour.
A reduction in salary can be imposed for a temporary period or for an indefinite period.
Generally, the reduction will be subject to any subsequent salary event, such as a promotion or a salary increase provided for in an agreement. It is, however, possible for an agency to impose a salary reduction for a defined period that makes provision for how the reduction would interact with any subsequent salary event—the sanction 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'.
The period for which a reduction in salary is to have effect should be clearly specified at the time the sanction is determined. Once the period of sanction is complete, the employee is entitled to be paid the salary at the level the employee would have received if they had not been subject to the temporary reduction. (Refer also to comments under reduction in classification)

Deductions from salary (fine)

This sanction is appropriate for less serious breaches, where it is appropriate for the agency to demonstrate the seriousness with which the employee's conduct is viewed, but it is not appropriate for the sanction to have long-term financial implications for the employee. 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 defined period.
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 carefully the meaning of the term 'salary' in the light of the agency's remuneration arrangements.

Reprimand

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 disciplinary process and presents no appreciable risk of further misconduct.
It acts as both a mark of disapproval of past conduct and as a warning for the future.
It should be noted that where a reprimand is imposed it is subject to the same standards of recordkeeping as apply to other sanctions. For this reason it may be practical for the reprimand to be administered at a face-to-face meeting, by reference to a written record of the reprimand, which is provided to the employee at the conclusion of the meeting, with a copy placed on the conduct file.
Agencies should also consider who would be the most effective person to deliver the reprimand—generally a reprimand delivered by a higher level manager will carry greatest weight.

Applying multiple sanctions for one breach

It is possible for more than one sanction to be applied to an employee found to have breached the Code if the person imposing the sanction is satisfied that more than one sanction is appropriate in the circumstances of the case and can give a proper reason for their decision. For example, an employee may be re-assigned duties and have a fine imposed.

Applying sanctions for multiple breaches

It is usually appropriate to reflect the existence of multiple related breaches in a more severe sanction rather than separate sanctions for each breach. Where the breaches are unrelated, for example a harassment incident and an unrelated theft, separate sanctions may be appropriate. In any case, the decision maker should, after deciding what sanction is warranted in relation to each breach, consider these decisions in order to ensure that the total effect is not disproportionate (i.e. neither too harsh nor too lenient) to the seriousness of the breaches considered as a whole—in other words, apply the totality principle 'take a last look at the total to see whether it looks wrong', Mill v The Queen, (1988), 166 CLR 54.

Key points for agency guidance material

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 application of procedural fairness.
Guidance material should include:

• advice on the role of the decision maker
• advice for the decision maker on the breach about preparing decision record—agencies may wish to consider developing a template
• advice on how to handle a case where an employee moves to another agency
• an explanation of the sanctions that can be used
• 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
• references to sources of advice such as data bases, HR personnel.

It should also provide guidance on handling the process of notifying the employee of a proposed sanction.

Part 3: Administrative Issues and Quality Assurance

7. Recordkeeping and access to records

The Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988 are relevant to the keeping of written records of misconduct actions—with the latter two Acts also related to access to, and use of, records.

Recordkeeping

The National Archives of Australia Administrative Functions Disposal Authority of February 2000 (Disposal Authority) provides information on the retention of records and sets out minimum periods for which various classes of records relating to counselling and misconduct matters should be retained.
Such records include records documenting:

• matters which form the basis for an investigation of whether there has been a breach of the Code
• formal investigations of alleged breaches of the Code
• reviews of, or litigation about, Code decisions
• the determination and implementation of a sanction.

This Disposal Authority sets out minimum retention periods for each of these types of documents. Full details can be accessed through the National Archives of Australia website: http://www.naa.gov.au/recordkeeping. A summary of the main provisions is included in Appendix 4.
The Disposal Authority was developed through a process of extensive consultation with agencies. It provides a useful benchmark of contemporary APS norms as to the minimum length of time that previous conduct is regarded as still relevant in making later decisions about an employee. However, the decision whether records should be kept for a period longer than the minimum established by the Disposal Authority rests with the agency.
Agencies will need to establish policies that set out how long different records are to be retained in the agency—for example, for cases of suspected serious misconduct where the employee resigns, an agency may decide that the records should not be destroyed. While not all documents need to be kept for the same amount of time, the retention periods set by agencies must be consistent for the same type of document.
Agencies should make policies concerning the retention of documents relating to suspected misconduct and misconduct readily available to all employees.

Recordkeeping requirements

Records relating to misconduct action need to be kept separate from the personal file of the employee concerned. The existence of a separate misconduct file should, however, be made apparent on the personal file (e.g. by cross-reference).
Files of this kind are to be classified 'In Confidence' and should be held in secure storage.
Access for management purposes should be allowed only on a strict need-to-know basis. Decision makers, who either are determining whether the Code has been breached or who are deciding an appropriate sanction, should have access to these records.
The person(s) involved in the investigation and decision-making should be responsible for the maintenance and security of the file records. Material placed on the misconduct file should include:

• all correspondence with the suspect employee, including the letter informing them they are suspected of breaching the Code, the letter that fully outlines the 'case against them', the letter advising them of the final determination, the letter outlining the proposed sanction and the reasons for it and the letter advising them of the sanction and their review rights
• any attachments to the correspondence
• 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
• copies of any draft material provided to the employee for comment
• the investigation report with all relevant evidence attached including such items as transcripts of evidence
• the employee's response to the correspondence.

Retention and disposal of misconduct records

In determining how long records are to be retained, agencies must take into account that misconduct proceedings are designed to protect the integrity of the APS and to prevent recurrence of any behaviour(s) rather than punish a person for the rest of their working life. Timeframes need to be fair and reasonable and reflect a balance between the needs of the agency, the employee and the public interest.
Agencies should ensure that records are destroyed in accordance with agency procedures. This also means there is a responsibility to ensure that records are destroyed appropriately when employees with a current misconduct record move to other agencies.
Included below are the minimum requirements contained in the Disposal Authority.

Findings of no misconduct

If there has been an investigation into suspected misconduct of an employee and it is decided that the allegations are unfounded, then any records should be destroyed 18 months after the investigation is completed. However, the employee concerned may request that the records be kept for the later of either:

• until the employee reaches the age of 75 or
• 7 years after the last action relating to the suspected misconduct.

The employee may also request that the records be destroyed at a specified time.
If an allegation is made of misconduct but no follow-up investigation is made because it was considered frivolous or vexatious or without substance, all records should be destroyed 18 months after the last action in the file.

Findings of misconduct

If, in the period of five years after a finding of misconduct against an employee is made, there have been no new breaches of the Code:

• the misconduct record of the employee should be destroyed and any cross reference in his or her personnel file should be removed
• the employee concerned should be informed in writing that the misconduct record has been destroyed and that any reference in their personnel file has been removed.

Termination of employment as a result of a breach of the Code remains on the public record.
If an employee who has been found to have breached the Code re-offends within five years, the records of earlier offences should be kept for a further period of five years.

Investigation not finalised

If an employee resigns during the course of an investigation of suspected misconduct, any documents that have been obtained or created up to the date of resignation should be retained on a separate misconduct file, even where the investigation is not complete.

Access to misconduct records

Under the Information Privacy Principles (IPPs) of the Privacy Act 1988, the purpose for which personal information was originally collected is a crucial factor in determining how it can be used and to whom it can be disclosed outside the agency. Agencies should refer to the information on the website of the Office of the Federal Privacy Commissioner: http://www.privacy.gov.au.
Agencies need to think carefully how they frame the purpose of the collection of personal information. The purposes for which they collect information in relation to misconduct and usual practice as to how information might be used or disclosed should be set out in an agency's privacy or human resource management policies. In addition, when collecting information directly from individuals, agencies should make them aware of how it may be used or disclosed in accordance with the IPPs, for example, that information may need to be passed on within the agency or to law enforcement authorities if it is considered that there may be a breach of the Code or the criminal law.
In deciding whether material that formed the basis for a finding of misconduct or that comes to light through an investigation can be used for other purposes, agencies need to consider:

• the IPPs (in particular IPP2, IPP9, IPP10 and IPP11)
• administrative law principles, including the need to have regard only to relevant considerations and the rules of natural justice
• Commonwealth and state or territory spent convictions legislation—in cases where a sanction was imposed for a breach of the criminal law
• the duty of care to other employees under occupational health and safety legislation should an investigation reveal risks to the safety of other employees.

Some directly related purposes or purposes authorised by law where information relating to previous counselling or sanctions for misconduct may be relevant include:

• pre-employment checks with prior APS employers for the purposes of a character clearance under section 22 of the PS Act
• promotion decisions
• protective security assessments
• in assessing an employee's performance where performance management schemes have regard to whether an employee embodies the APS Values and the Code as well as achieves outcomes
• to demonstrate that the employee was investigated but exonerated or that there was insufficient evidence found to take action
• as part of an employee's salary record for the purpose of calculating salary, long service leave and superannuation entitlements
• considering what sanction to impose.

Agency policies should also provide that, regardless of whether misconduct records have been removed from an employee's personal file or not, managers should not have regard to past findings of misconduct once the agency-determined retention period has expired.²⁰
It may be lawful for agencies to provide information on misconduct to other employers or potential employers but the applicant will need to be informed of this and given the opportunity to comment by the employing agency or potential employing agency (refer to the Australian Public Service Commission's Circular No 2007/2: The Privacy Act and employee information concerning Code of Conduct matters).
Before providing any information, agencies should ensure that all recordkeeping procedures have been followed such as destroying a misconduct record when the required period has passed since the last action on the record.
When passing misconduct records to a new agency following the movement of an employee, agencies should ensure that the employing agency is aware of the recordkeeping guidelines that apply to the misconduct record and advise the agency when any material is due to be destroyed. Similarly, if an agency receives files with misconduct records they should ensure that they are aware of the recordkeeping requirements of the other agency generating the records and adhere to them as if they were their agency's recordkeeping procedures.

Considering misconduct in the selection process

The selection process is a key means by which an agency gains relevant information regarding eligibility and suitability from applicants.
As candidates are not bound to identify any problems if not specifically asked, they should be specifically asked for relevant information on their previous work history. While it may not be possible to ensure that all information provided by applicants is accurate, agencies need to be aware of the risks in not checking information provided.²¹
Having a work history that includes a finding that the employee has breached the Code or being investigated for a suspected breach does not automatically exclude that employee from consideration in a selection process. If an applicant discloses prior misconduct or the delegate or panel is aware of prior misconduct, a decision on whether the person is suitable for employment should not be made without assessing the work-related qualities of the applicant against the identified work-related qualities (which includes personal qualities) genuinely required for the duties.
When dealing with a previous breach of the Code, the following factors should be considered:

• the nature of the breach (or suspected breach)
• the sanction imposed
• how long ago the breach or suspected breach occurred
• the nature of the duties being performed at the time
• the duties of the current employment opportunity
• whether this was a one-off action or part of a pattern of behaviour.

If an applicant is involved in a misconduct action that has yet to be finalised, care needs to taken so as to not prejudge the outcome of any investigation while ensuring the work related qualities of the employee are appropriate for the duties to be performed. If, after the assessment of the person's work-related qualities, the person is a preferred applicant, the options available include:

• awaiting the outcome of the investigation (if feasible)
• proceeding with the assignment of duties or movement if the proposed breach is considered minor or the possibility of such a potential breach in the new agency is low
• offering the person a temporary assignment or movement pending the finalisation of the investigation.

Referee reports and misconduct

It is a common practice for APS agencies to ask applicants seeking promotion or movement at level to obtain a referee report from their current supervisor or manager.
The IPPs apply to giving a referee comment regardless of whether there are issues with the employee such as underperformance, poor attendance or misconduct.
Supervisors should avoid any comment in a referee report that is unrelated to the employee's work performance. Any comment that is made must be relevant to the selection criteria.
In determining whether to disclose information on a prior or suspected breach of the Code, factors that must be taken into account include:

• the nature of the breach or suspected breach
• how long ago the breach occurred
• the duties being undertaken at the time and the proposed duties of the new work
• the employee's conduct since the breach.

Where an employee whose conduct is under investigation asks a referee from the agency to provide a report and the investigation may be relevant to the work-related qualities required for the job, the referee could indicate that there have been concerns as yet unresolved where the situation warrants it. To go beyond that could be seen as prejudging the situation, particularly where there is no clear determination of misconduct.
Where an investigation has concluded that the employee did not breach the Code, it would be inappropriate for the referee to make any reference to the investigation, unless the investigation resulted in some findings relating to matters of performance or attitude which, although not amounting to misconduct, may nevertheless reflect on the employee's suitability for the employment opportunity in question.
If a breach of the Code has been found to have occurred, and where the breach is relevant, the referee may include an outline of the circumstances surrounding the breach and comment on the relevance of the matter to the position.
Whether the investigation is in progress or has been concluded, an employee's conduct, or misconduct, record is relevant only to the extent that the circumstances have a bearing on the duties and the qualities required for the position for which the reference is being sought.
In all cases, the weight to be given to records of determined misconduct will diminish over time.

Key points for agency guidance material

Agency guidance material should include information, some of which can be drawn from this chapter, on the following:

• agency recordkeeping procedures and appropriate contact points within the agency
• the agency's policies on the retention and disposal and associated records policies including clear delineation of roles and responsibilities of misconduct
• guidance on consideration of misconduct records for selection committees. Such guidance may more appropriately be placed in the agency's recruitment and selection procedures—for example, including a requirement, as part of the pre-engagement or movement checking process, for prospective employees to declare any relevant misconduct matters.

Where an APS agency is considering employing a current or former employee of another APS agency, it could seek the (prospective) employee's consent, as part of the pre-engagement or movement checking process, to the agency seeking information about suspected or determined misconduct and Code of Conduct processes from, and disclosure by, the person's current or former agency.
Agencies should consider advising in applicant information packs that this information may be requested if there are concerns raised about the applicant's conduct from information provided during the selection process.

8. Review of actions

Non-SES employees who have been found to have breached the Code and who wish to challenge either the determination that a breach has occurred or the sanction imposed (except in the case of termination of employment), may lodge an application for a review of actions under Division 5.3 of the Regulations (reproduced in Appendix 1). A decision to suspend an employee can also be the subject of review.
A decision to temporarily re-assign the employee's duties would be subject to review only where the temporary reassignment was made under section 25 of the PS Act (i.e. not imposed as a sanction under section 15) and involved any of the circumstances provided for in Schedule 1 of the Regulations.²²
An application for review of a determination that an employee has breached the Code, or of a sanction imposed for a breach of the Code, must be made to the Merit Protection Commissioner (regulation 5.24(2)). Applications for the review of decisions relating to suspension will generally be made in the first instance to the agency head (regulation 5.24(1)). The making of an application for review does not operate to stay the action (regulation 5.36).
There are time limits applying to the lodgement of a request for a review of action. An application to the Merit Protection Commissioner for a review of:

• a determination that the Code has been breached must be made by the employee within 60 days of the determination of breach
• the imposition of a sanction must be made by the employee within 60 days of the imposition of the sanction

An application for review made outside these timeframes will generally be considered not to be reviewable unless there are exceptional circumstances explaining the delay (regulation 5.23(3)(a)).
An employee who has been dismissed is not able to request a review of a decision to terminate the employment but may have the right under the unfair dismissal provisions of the Workplace Relations Act 1996 to apply to the AIRC for a remedy.
The Commission can provide information to agencies and individuals about the review of actions process. However, the Commission cannot give advice on whether an application for review should be lodged in a particular case or particular circumstances. Further information can be obtained from the nearest Commission office or the Commission website.

The review process

An application must be lodged directly with the Merit Protection Commissioner if:

• the application is for review of a finding of a breach of the Code
• the application is for review of a sanction, other than termination, imposed for breach of the Code.

In other cases, the initial application should be lodged with the agency head or their delegate. The Merit Protection Commissioner is not authorised to investigate applications for suspension which have not first been investigated by an agency unless:

• the relevant agency head was personally or directly involved in the action under review
• the employee believes that it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the application
• the employee believes they are being victimised or harassed for having made a previous application for review of another action.

The request for a review to the Merit Protection Commissioner must be in writing and should state why the review is being sought.
Lodging an application for review does not operate to stay the action for which the review is sought. Once lodged, the application can be withdrawn at any time.
In general terms, any review that is conducted will address the following issues:

• whether the agency's Code procedures comply with the Directions
• whether those procedures were substantially complied with by the agency in the course of determining whether there was a breach of the Code
• on the evidence available, what act or acts were committed by the relevant employee
• did they amount to a breach of the Code
• if yes, was the sanction appropriate in all the circumstances?

When a review is completed, the Merit Protection Commissioner makes a report to the agency head and, if the Merit Protection Commissioner is satisfied that the relevant action was in some way unreasonable, the Merit Protection Commissioner may recommend that the agency:

• reconsider or change any relevant decision
• change its rules or procedures
• take some other appropriate action.

If a recommendation is not accepted, the Merit Protection Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.
The applicant will be given a copy of the Merit Protection Commissioner's report to the agency head. While there is no further right of review under the PS Act or the Regulations, the affected employee could seek judicial review under the general law or the Administrative Decisions (Judicial Review) Act 1977.

Key points for agency guidance material

While it is not a PS Act requirement to notify employees of their review rights, it would be good practice to include some information in agency guidance material. The guidance material could also provide links to the advice on the Commission's website www.apsc.gov.au. This site contains advice provided by the Merit Protection Commissioner and contacts for the Commission's regional offices.

9. Quality assurance and streamlining the process

The earlier chapters of this good practice guide have presented information on good practice in relation to the processes surrounding the reporting and management of misconduct.
This chapter outlines a number of mechanisms agencies can employ to ensure that the processes of handling misconduct are appropriate and provides advice as to where the process for handling misconduct can be streamlined to ensure that processes avoid unnecessary delay. A number of common pitfalls are also identified to alert agencies to potential problem areas.

Quality assurance

Agencies should consider implementing the following key quality assurance mechanisms in the process for handling misconduct:

• having several options available for employees to report suspected misconduct
• providing detailed guidance to the managers making the important initial decision of whether the suspected misconduct is a minor matter, or a more serious one, to ensure fairness and consistency in the treatment of suspected misconduct
• ensuring that the decision maker who determines whether a breach has occurred has the necessary skills, experience and resources including knowledge of the investigation process
• having a final checking process so that the decision maker is able ensure that the required processes and paperwork associated with the investigation and determination are complete prior to the final determination being made
• considering whether a separate person should be delegated the power to determine the appropriate sanction
• limiting the number of people in the agency with the delegation to determine a sanction to only a few people
• making available detailed, clear guidance material to all employees about the reporting and management of suspected misconduct.

There are a range of other quality assurance mechanisms that can be advisable for agencies to use as part of their governance procedures.

• Conduct periodic training focussing on the relevance of the Code to employees' day- to-day work including the use of realistic scenarios directly relevant to the work of the agency. This training should also include information on the options for reporting misconduct within the agency.
• Regularly review agency written guidance material on reporting and dealing with misconduct to ensure it is kept up to date, including contact details of relevant people
• Make judicious use of case studies based on situations that have occurred in the agency to assist in educating employees about how different types of misconduct are dealt with, and what sanction can be expected in relation to different types of misconduct. Case studies should not include any information that could identify the individuals involved.
  The publicising of recent cases can have significant deterrent effects, but their use should be approached with caution given the requirements of the Privacy Act 1988. It is important to de-identify cases as much as possible but it is likely that there would be a lower risk that such use/disclosure of personal information would be contrary to the Information Privacy Principles (IPPs) in the Privacy Act 1988 if the affected employee has been made aware that the information may be used or disclosed in line with the disclosure provisions in IPP2 both in general information to all employees and at the time of the investigation. An alternative approach suggested by the Office of the Federal Privacy Commissioner is that in compiling case studies for training or educative purposes amalgamated scenarios or 'dummy' facts could be used. Reported AIRC cases examining termination of employment decisions are public documents and can be used freely in any educative material.
• It is important to note that withholding a person's name may not be sufficient to protect that person's identity. Personal information can include any information or opinion from which a person's identity is apparent or may be 'reasonably ascertained'.
  For example, in a small agency or in a rural or regional area, information about an employee's work area or location or even the type of complaint may be sufficient to identify that person. This should be taken into account when considering whether and what information to release to a third party.
• Integrate a requirement, tailored to be appropriate to different responsibilities at different levels, to demonstrate a knowledge and commitment to the Values and the Code into an agency's performance management system.
• Include questions, in a periodic staff survey, to establish the level of employee knowledge on how to report misconduct, their confidence in being protected from victimisation and discrimination if they report misconduct, whether or not they have observed serious misconduct in the last 12 months, of the Code generally, and their views on whether their colleagues and managers behave in accordance with the Code. If an agency would like assistance with the formulation of questions please contact the Director of the State of the Service team on (02) 6202 3575 or StateoftheService@apsc.gov.au.
• Establish a centralised function within the agency that collects data and monitors progress of misconduct cases. This would include the establishment of a data base of cases including sanctions to assist in ensuring consistency of handling cases and in sanction setting. This function would also act as a quality control mechanism (e.g. checking on timeliness of cases) and be able to provide data to senior management on the number and types of misconduct cases for strategic monitoring purposes, the numbers of reviews sought and the outcomes of any such reviews.
• Ensure regular reports to the agency executive or senior management team on important issues such as any obvious trends, or any systemic issues arising or recommendations for action.
• Periodically conduct a file audit of a sample of misconduct files to evaluate if correct procedures and recordkeeping requirements are being followed.

Avoiding unnecessary delay

Each agency head is required to establish procedures to investigate and determine suspected misconduct. Those procedures must, at a minimum, be consistent with the Public Service Commissioner's Directions. These minimum procedures may be quite brief, and essentially concerned only with the requirement, before any determination is made, to provide the employee with:

• full details of the suspected breach of the Code
• a reasonable opportunity to make a statement in relation to the suspected breach.

The Directions stipulate only that 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. Ensuring the timeliness of misconduct action is important for a number of reasons. Delays not only affect the agency and the employee, but can also be a factor considered in external review. If the case goes to review after an excessively lengthy process, particularly where a high impact sanction has been imposed (e.g. termination or a reduction in classification), generally it will be a factor that will go against the agency's position unless there are good reasons for the delay.

Understanding the steps in the process for handling misconduct

There are a number of ways agencies can minimise the time taken in handling misconduct.

Pre-investigation stage (see Chapter 4)

At this stage of a process a manager has become aware that an employee may have breached the Code and must consider what action, if any, to take. There are a number of issues influencing timing that should be considered.

Formal or informal?

• In many cases, particularly those which are less serious and where the suspected behaviour of the employee is unintentional or atypical, it may be more effective for the manager to deal directly and informally with the employee about their conduct.

Authorisation

• Where a decision is taken to move to a formal investigation into the matter, that decision should be put into operation promptly and a decision maker authorised under the agency's procedures as soon as possible. Agencies may find it useful to maintain a pool of employees who have experience or relevant training in conducting investigations of this kind, and are familiar with the administrative law principles that underpin them.
• Often the person authorised to make a determination that an employee has breached the Code is a relatively senior employee. Where the employee authorised to make the determination concerning suspected misconduct is also expected to manage their normal workload during the course of the investigation, it is often useful to provide that person with assistance to conduct the basic evidence and information gathering, interview witnesses, draft correspondence, and even draft the final report for the decision maker. Guidance material can make clear that this is an acceptable approach.

Notification

• An employee is entitled to be told of the details of the suspected breach of the Code before the determination is made. However, they do not have to be advised of this by the person authorised to make the determination. An agency could advise an employee that they are being investigated and set out the basis for that (e.g. element(s) of the Code suspected of being breached, a description of the suspected behaviour, evidence available at the time) at the same time that they advise the employee of the identity of the person authorised to make the determination.

Suspension

Agencies can elect to have any decision about suspension made by a person other than the person authorised to determine whether there has been a breach of the Code. Giving this responsibility to another employee will:

• allow the person conducting the investigation to focus clearly on the question of whether the employee has breached the Code
• reduce the concerns of the employee about possible prejudgement
• allow the agency to develop a core of experience dealing with the special concerns raised by questions of whether an employee should be suspended.

Public Service Regulations 3.10(4) and (5) requires that the person exercising the suspension delegation retains contact with the Code investigation to ensure that they can properly review the decision to suspend the employee, or to revoke the suspension in the event that

• a determination is made that the employee did not breach the Code
• a sanction is imposed on the employee in relation to a relevant determination that the employee breached the Code.

Investigation stage (see Chapter 5)

Investigations into suspected breaches of the Code are fundamentally concerned with gathering material relevant to the question being determined. A number of aspects of this process can affect timeliness.

Procedural fairness

From time to time some concern is expressed that misconduct investigations are unduly delayed by the need to comply with procedural fairness. In particular, the requirement to provide the employee with an opportunity to put their case, and who exactly should be given the opportunity to comment, are advanced as the reasons for delay in some cases.
However, it is important to note that:

• procedural fairness will not always require that the material be put in writing. In many cases, for example, it can be put to the employee at an interview and discussed at that time
• nor will it always require that the employee be given an extended period of time to consider the material, or that the employee should be allowed to decide the timetable for providing comment.

The rule requires that the employee be given reasonable opportunity, not a perfect opportunity. What will amount to a reasonable opportunity will vary according to the circumstances, but it is not what the employee under investigation believes is a reasonable opportunity. Rather, this is determined by an objective standard; that is, what a reasonable person would believe was a reasonable opportunity given the circumstances.
The person making the determination should also bear in mind that procedural fairness is not owed to everyone involved in an investigation. The obligation arises only in relation to those people for whom the decision might affect a right or interest. Usually this will be confined to the subject employee rather than, for example, witnesses questioned in the course of an investigation.
While there is an obligation to provide a reasonable opportunity to comment, the guiding principle is that this needs to be balanced against the seriousness of the suspected conduct and the other circumstances that apply. It is suggested that, in most cases, no more than seven days would need to be allowed as the period in which to provide such comments.

Statements

One of the most common forms of information gathering in any investigation is the use of interviews, whether in relation to the suspect employee, a complainant, or witnesses. It is good practice to ensure, where possible, that the record of such interviews is complete and agreed with by the interviewee.
Usually this agreement will be recorded by the interviewee signing the record in some form to indicate that they have read and agreed with it or by an exchange of correspondence(perhaps by email). If a person is provided with material in draft for comment and a reasonable timeframe for response beyond which the material will be regarded as final, it may be regarded as final and further correspondence need not be entered into.
Where the interviewee disputes some matters in the draft record, it is not always necessary to reach agreement. Where, for example:

• agreement appears to be unlikely
• agreement would take an unwarranted period of time to achieve
• the matter concerned is of limited relevance to the issue being investigated it is open to the person conducting the investigation to place their version of the interview on the record and add a statement (often provided by the interviewee) to that record, noting the areas of disagreement.

Privacy requirements/obligations

Misconduct investigations typically gather information from employees and other people involved in a matter.
Information that tends to establish that a suspect employee has, or may have, breached the APS Code of Conduct would be regarded as personal information.
Personal information relating to a misconduct investigation must be handled within the boundaries set by the Privacy Act 1988 and the PS Act. Within the context of obligations of APS agencies under the Privacy Act 1988, personal information applies only to individuals and the content must be about that individual.
The collection, storage, use and disclosure of information of this kind is regulated by the Information Privacy Principles (IPPS) under section 14 of the Privacy Act 1988. It may be useful for agencies to develop standard approaches in their guidance material. For example:

• It is good practice for all APS agencies to put employees on notice, using a valid IPP 2 notice, which makes employees aware upon commencing employment with the agency as to the potential use and disclosure of Code of Conduct information.
• At the beginning of an investigation about a complaint, agencies should (among other things) ensure that the employee who is the subject of an investigation is familiar with the agency's policy in regard to complaint handling and answer any questions the employee may have at this time about the policy and the complaint under investigation. For example, IPP 2 notices should be as specific as is reasonably possible to ensure that employees are aware to whom their personal information may be disclosed.
  Agencies should advise the employee being investigated, in writing, that a complaint investigation is underway, what the complaint is about and that personal information about them may be disclosed to others, where necessary and appropriate.
  Where an investigation has been completed and part of the recommendation is for the employee's personal information to be released to another person, body or agency (including the complainant), the individual concerned should be advised and provided with an opportunity to respond to the proposed release of their personal information prior to release. In other words, the principles of natural justice should be applied. A reasonable timeframe, understood by both parties, should be allowed for this response and should be sufficient to allow, for example, the employee to seek advice as necessary. Records should be kept of any decisions to disclose personal information about an employee to another person, body or agency.
• When a person conducting an investigation is interviewing a witness they might use a form of words such as:

  This is an investigation being carried out under procedures established by the agency head under section 15(3) of the Public Service Act for the purpose of determining whether another employee has breached the APS Code of Conduct. A record of this meeting will be kept and may be released in whole or in part for the purposes of making that determination. Do you consent to the release of that information? If not, do you understand that it may be released where necessary in any event?

These words could then also be written into the record of the interview.

Sample clauses on disclosing information for inclusion in agency code of conduct procedures are at Appendix 6.
The circumstances in which personal information gathered in the course of a misconduct investigation may need to be used and disclosed are as follows:

Providing information to a complainant about the outcome of a Code of Conduct investigation

Where a complainant has raised issues about an APS employee's actions or behaviour, or the processes, actions or conduct of an agency, information about the outcome of an investigation may need to be provided to the complainant. It should be possible in most circumstances to give a complainant adequate information about the way their complaint has been handled without disclosing personal information about an employee.
In this situation, there is a further requirement to achieve an appropriate balance between the needs of the employee, the agency and the complainant in relation to the use and disclosure of personal information. Agency heads (or their delegates) should exercise judgement on a case by case basis when considering what personal information about an employee should be released to the complainant.
There are a number of factors to consider before releasing personal information.The primary consideration for agencies should be that disclosure of personal information under IPP 11 regarding misconduct is managed in such a way that an employee's identity is not revealed unless it is necessary, appropriate and reasonable to do so. This is particularly important where the complainant is employed in the same agency.
A sample letter advising complainants on the outcome of a Code of Conduct investigation is at Appendix 7.
For further information on the circumstances in which an agency can lawfully disclose personal information about an employee to a complainant please refer to the Commission's Circular No 2008/3: Providing information on Code of Conduct investigation outcomes to complainants. If an agency is in doubt as to whether it can lawfully disclose personal information about an employee to a complainant in a particular case, it should seek legal advice.

Sharing information between APS agencies about Code of Conduct matters for employment related purposes

This could include where an APS agency is considering employing a current, or former, employee from another APS agency, where that employee:

• has been subject to a finalised Code of Conduct investigation
• has been notified that they are under investigation for an alleged or suspected breach of the APS Code
• is the subject of an allegation of a breach of the APS Code that has not been addressed.

The purposes for sharing information between APS agencies about Code of Conduct matters for employment related purposes includes for selection/recruitment processes and progression of Code of Conduct investigations.
This can involve:

• the 'use' of information for another purpose other than which it was collected (IPP 10.1(a))
• the 'use' of information for a purpose directly related to the purpose for which the information was obtained (IPP 10.1(e))
• 'disclosure' of information from one APS agency to another APS agency (IPP 11.1(b)).

The person the information is about must be informed about and freely consent to the use and/or disclosure of their personal information. A 'consent' from a person who has no other option but to consent is not adequate for exceptions under IPPs 10.1(a) or 11.1(b).
For further information on the steps agencies can take to lawfully ensure that employees are reasonably likely to be aware of the circumstances in which Code of Conduct information may be disclosed to another APS agency refer to the Commission's Circular No 2007/2: The Privacy Act and employee information concerning Code of Conduct matters.
If an agency is in doubt as to whether it can lawfully release information to another agency in a particular case, it should seek legal advice. If an agency is in doubt as to whether it can lawfully collect and use information in a particular case, it should seek legal advice.

Burden of proof

As a civil administrative matter, the decision that an employee has breached the Code is made on the 'balance of probabilities'—that is on the basis of what is most likely to have happened.
It will always be a matter of judgement for the decision maker about the extent to which they follow up on every line of inquiry that arises during the investigation, or only those which are of substance and which, if established, will have a direct impact on the decision to be made. 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'.

Avoiding common pitfalls

There are a number of common pitfalls that are often faced by employees conducting a misconduct action.
Agencies may wish to highlight these in any agency guidance along with any other pitfalls experienced within the agency.

Things to avoid

Employees involved in a misconduct action should avoid the following:

• confusing the roles of the decision maker who determines whether a breach has occurred, and the investigator—the decision maker retains overall responsibility for the processes associated with making the determination (see Chapters 5 and 6)
• not giving the accused employee and/or witnesses the opportunity to respond to new and/or conflicting evidence during the investigative process (see Chapter 5)
• approaching the investigation with the attitude of 'proving the allegation' rather than a disinterested attitude of finding out all the relevant facts and circumstances (i.e. starting with a presumption of guilt)
• inadequate investigation reports that are not clearly structured and do not explicitly evaluate and weigh-up the available evidence including conflicting evidence
• agency employees making comments about the case that presume the accused employee's guilt prior to a determination being made—this type of comment, made particularly by more senior employees or by a decision maker, can result in the decision being overturned on review, because of perceptions of bias
• not fulfilling all procedural fairness requirements, in particular, not giving the employee the opportunity to respond to the full case against them prior to the determination being made or not giving them the opportunity to respond to the proposed sanction
• not considering information on recent sanctions for broadly similar types of misconduct across the agency to ensure greater consistency in sanction setting
• not clearly setting out the reasons for preferring a particular sanction
• poor recordkeeping practices—if key documents and correspondence are missing from the file this can significantly weaken the agency's position if the case goes to review
• undue delay.

Key points for agency guidance material

Agency guidance material could include information, some of which can be drawn from this chapter, on the following:

• references to the agency's quality assurance mechanisms, including appropriate feedback processes that can feed into the regular evaluation of the process for handling misconduct
• advice to employees on how delays can be minimised within the agency's procedures
• a checklist of common pitfalls identified within the agency.

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 more quickly address the administrative and procedural fairness issues and provide a consistent approach across the agency.

Appendix 1: Legislative instruments

Extracts from the Public Service Act, Public Service Regulations, the Public Service Commissioner's Directions and the Privacy Act

PUBLIC SERVICE ACT 1999—SECT 10

The APS Values

1. The APS Values are as follows:
   1. the APS is apolitical, performing its functions in an impartial and professional manner;
   2. the APS is a public service in which employment decisions are based on merit;
   3. the APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves;
   4. the APS has the highest ethical standards;
   5. the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public;
   6. the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs;
   7. the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public;
   8. the APS has leadership of the highest quality;
   9. the APS establishes workplace relations that value communication, consultation, cooperation and input from employees on matters that affect their workplace;
   10. the APS provides a fair, flexible, safe and rewarding workplace;
   11. the APS focuses on achieving results and managing performance;
   12. the APS promotes equity in employment;
   13. the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment;
   14. the APS is a career based service to enhance the effectiveness and cohesion of Australia's democratic system of government;
   15. the APS provides a fair system of review of decisions taken in respect of APS employees.

PUBLIC SERVICE ACT 1999—SECT 12

Agency Heads must promote APS Values

An Agency Head must uphold and promote the APS Values.

PUBLIC SERVICE ACT 1999—SECT 13

The APS Code of Conduct

1. An APS employee must behave honestly and with integrity in the course of APS employment.
2. An APS employee must act with care and diligence in the course of APS employment.
3. An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
4. An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:
   1. any Act (including this Act), or any instrument made under an Act
   2. any law of a State or Territory, including any instrument made under such a law.
5. An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.
6. An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff .
7. An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
8. An APS employee must use Commonwealth resources in a proper manner.
9. An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment.
10. An APS employee must not make improper use of:
    1. inside information; or
    2. the employee's duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for an other person.
11. An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.
12. An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
13. An APS employee must comply with any other conduct requirement that is prescribed by the regulations.

PUBLIC SERVICE REGULATIONS 1999

Reg 2.1 Duty not to disclose information (Act s 13)

For the purposes of subsection 13(13) of the Act, an APS employee, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, must not give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.
Note: Under s 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate the information.

PUBLIC SERVICE ACT 1999—SECTION 15

Breaches of the Code of Conduct

1. An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:
   1. termination of employment
   2. reduction in classification
   3. re-assignment of duties
   4. reduction in salary
   5. deductions from salary, by way of fine
   6. a reprimand.
2. The regulations may prescribe limitations on the power of an Agency Head to impose sanctions under subsection 1.
3. An Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct. The procedures: a. must comply with basic procedural requirements set out in Commissioner's Directions b. must have due regard to procedural fairness c. may be different for different categories of APS employees.
4. The Commissioner must issue directions in writing for the purposes of subsection 3.
5. An Agency Head must take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out the procedures referred to in subsection 3.

PUBLIC SERVICE REGULATIONS 1999

Reg 3.10 Suspension from duties (Act s. 28)

1. An Agency Head may suspend an APS employee employed in the Agency from duties if the Agency Head believes on reasonable grounds that:
   1. the employee has, or may have, breached the Code of Conduct; and
   2. the employee's suspension is in the public, or the Agency's, interest.
2. The suspension may be with remuneration.
3. If the suspension is to be without remuneration, the period without remuneration is to be: a. not more than 30 days b. if exceptional circumstances apply—a longer period.
4. The Agency Head must review the suspension at reasonable intervals.
5. The Agency Head must immediately end the suspension if the Agency Head no longer believes on reasonable grounds: a. that the APS employee has, or may have, breached the Code of Conduct b. that the employee's suspension is in the public, or the Agency's, interest.
6. The Agency Head must immediately end the suspension if a sanction has been impose don the APS employee for the relevant breach of the Code of Conduct.
7. In exercising powers under this regulation, the Agency Head must have due regard to procedural fairness unless the Agency Head is satisfied on reasonable grounds that, in the particular circumstances, it would not be appropriate.

Reg 5.24 Application for primary review

1. An affected employee may apply in writing to the relevant Agency Head for primary review of a reviewable action.
2. However, the application must be made to the Merit Protection Commissioner if the application is for review of:
   1. a determination that the affected employee has breached the Code of Conduct
   2. a sanction imposed for breach of the Code of Conduct.
3. Also, the employee may apply in writing to the Merit Protection Commissioner for review of the action if:
   1. the Agency Head was directly involved in the action
   2. it is not appropriate, because of the seriousness or sensitivity of the action, for the Agency Head to deal with the application
   3. the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.
4. The application must state briefly:
   1. why the review is sought
   2. if a particular outcome is sought—the outcome sought.

Examples of outcomes

1. Reconsideration of the action.
2. Re-assignment of duties.

Reg 5.36 Making of application does not operate as stay

The making of an application for review of an APS action under this Division does not operate to stay the action.

PUBLIC SERVICE COMMISSIONER'S DIRECTIONS 1999

Chapter 5—Basic Requirements for Procedures for Determining Breaches of the Code of Conduct

5.1 Purpose of Chapter 5

The purpose of this Chapter is to set out the basic procedural requirements that must be complied with by the procedures established by an Agency Head under subsection 15 (3)of the Act for determining whether an APS employee in the Agency has breached the Code of Conduct.
Note: The requirements set out in this Chapter and the procedures established under subsection 15 (3) of the Act apply only in relation to a suspected breach of the Code of Conduct by an APS employee in respect of which a determination is to be made. Not all suspected breaches of the Code of Conduct may need to be dealt with by way of a determination. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate.

5. 2 Information to be given to employee before determination is made

Before any determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, the employee must:

1. be informed of:
   1. the details of the suspected breach of the Code of Conduct (including any variation of those details)
   2. the sanctions that may be imposed on the employee under subsection 15 (1) of the Act (including any limitations on that power contained in regulations made for the purposes of subsection 15 (2) of the Act)
2. be given reasonable opportunity to make a statement in relation to the suspected breach.

5.3 Determination process to be informal

The process for determining whether an APS employee has breached the Code of Conduct must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

5.4 Person making determination to be independent and unbiased

An Agency Head must take reasonable steps to ensure that the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased.

5.5 Record of determination

After a determination in relation to a suspected breach of the Code of Conduct by an APS employee is made, a written record stating whether the employee has been found to have breached the Code of Conduct must be prepared.
Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.

5.6 Appropriate procedures if basis of APS employee's engagement in an agency changes or employee moves to a different agency

1. This clause applies if:
   1. an APS employee in an Agency is suspected of having breached the Code of Conduct
   2. before any determination is made in relation to the suspected breach:
      1. the basis of the employee's engagement in the Agency changes
      2. the employee moves to a different Agency.

Note: Examples of a change in the basis of an APS employee's engagement in an Agency are as follows:

1. a change from engagement for a specified term, or for the duration of a specified task, to engagement as an ongoing APS employee
2. a change from engagement for duties that are irregular or intermittent to engagement as an ongoing APS employee.

1. A determination (if any) in relation to the suspected breach must be made:
   1. if the basis of the employee's engagement in the Agency has changed—in accordance with the procedures applicable to the basis of the employee's engagement in the Agency at the time the process for determining whether the employee has breached the Code of Conduct is commenced
   2. if the employee has moved to a different Agency—in accordance with the procedures applicable in the Agency to which the employee has moved at the time the process for determining whether the employee has breached the Code of Conduct is commenced.

INFORMATION PRIVACY PRINCIPLES (IPPS) UNDER THE PRIVACY ACT 1988 (CTH)—SECTION 14

Principle 1—Manner and purpose of collection of personal information

1. Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:
   1. the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and
   2. the collection of the information is necessary for or directly related to that purpose.
2. Personal information shall not be collected by a collector by unlawful or unfair means.

Principle 2—Solicitation of personal information from individual concerned

Where:

1. a collector collects personal information for inclusion in a record or in a generally available publication; and
2. the information is solicited by the collector from the individual concerned;
   the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensurethat, before the information is collected or, if that is not practicable, as soon as practicable after the information is collected, the individual concerned is generally aware of:
3. the purpose for which the information is being collected;
4. if the collection of the information is authorised or required by or under law—the fact that the collection of the information is so authorised or required; and
5. any person to whom, or any body or agency to which, it is the collector's usual practice to disclose personal information of the kind so collected, and (if known by the collector) any person to whom, or any body or agency to which, it is the usual practice of that first mentioned person, body or agency to pass on that information.

Principle 3—Solicitation of personal information generally

Where:

1. a collector collects personal information for inclusion in a record or in a generally available publication; and
2. the information is solicited by the collector: the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is collected:
3. the information collected is relevant to that purpose and is up to date and complete; and
4. the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Principle 4—Storage and security of personal information

A record-keeper who has possession or control of a record that contains personal information shall ensure:

1. that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and
2. that if it is necessary for the record to be given to a person in connection with the provision of a service to the record-keeper, everything reasonably within the power of the record-keeper is done to prevent unauthorised use or disclosure of information contained in the record.

Principle 5—Information relating to records kept by record-keeper

1. A record-keeper who has possession or control of records that contain personal information shall, subject to clause 2 of this Principle, take such steps as are, in the circumstances, reasonable to enable any person to ascertain:
   1. whether the record-keeper has possession or control of any records that contain personal information; and
   2. if the record-keeper has possession or control of a record that contains such information:
      1. the nature of that information;
      2. the main purposes for which that information is used; and
      3. the steps that the person should take if the person wishes to obtain access to the record.
2. A record-keeper is not required under clause 1 of this Principle to give a person information if the record-keeper is required or authorised to refuse to give that information to the person under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.
3. A record-keeper shall maintain a record setting out:
   1. the nature of the records of personal information kept by or on behalf of the record-keeper;
   2. the purpose for which each type of record is kept;
   3. the classes of individuals about whom records are kept;
   4. the period for which each type of record is kept;
   5. the persons who are entitled to have access to personal information contained in the records and the conditions under which they are entitled to have that access; and
   6. the steps that should be taken by persons wishing to obtain access to that information.
4. A record-keeper shall:
   1. make the record maintained under clause 3 of this Principle available for inspection by members of the public; and
   2. give the Commissioner, in the month of June in each year, a copy of the record so maintained.

Principle 6— Access to records containing personal information

Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the record-keeper is required or authorised to refuse to provide the individual with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

Principle 7— Alteration of records containing personal information

1. A record-keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:
   1. is accurate; and
   2. is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up to date, complete and not misleading.
2. The obligation imposed on a record-keeper by clause 1 is subject to any applicable limitation in a law of the Commonwealth that provides a right to require the correction or amendment of documents.
3. Where:
   1. the record-keeper of a record containing personal information is not willing to amend that record, by making a correction, deletion or addition, in accordance with a request by the individual concerned; and
   2. no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request has been made under the applicable provisions of a law of the Commonwealth;

the record-keeper shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the record any statement provided by that individual of the correction, deletion or addition sought.

Principle 8—Record-keeper to check accuracy etc of personal information before use

A record-keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date and complete.

Principle 9—Personal information to be used only for relevant purposes

A record-keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.

Principle 10—Limits on use of personal information

1. A record-keeper who has possession or control of a record that contains personal information that was obtained for a particular purpose shall not use the information for any other purpose unless:
   1. the individual concerned has consented to use of the information for that other purpose;
   2. the record-keeper believes on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person;
   3. use of the information for that other purpose is required or authorised by or under law;
   4. use of the information for that other purpose is reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or
   5. the purpose for which the information is used is directly related to the purpose for which the information was obtained.
2. Where personal information is used for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue, the record- keeper shall include in the record containing that information a note of that use.

Principle 11—Limits on disclosure of personal information

1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
   1. the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;
   2. the individual concerned has consented to the disclosure;
   3. the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
   4. the disclosure is required or authorised by or under law; or
   5. the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
2. Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.
3. A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.

Appendix 2: Suggested agency procedures under section 15(3) OF THE Public Service Act 1999

Procedures for determining breaches of Code of Conduct

I, [name of Agency Head], [position and name of Agency], establish these Procedures under subsection 15 (3) of the Public Service Act 1999.
Dated

1. Application of procedures

These Procedures must be complied with in determining whether an APS employee has breached the Code of Conduct.
Note: These Procedures apply only in relation to a suspected breach of the Code of Conduct by an APS employee in respect of which a determination is to be made. Not all suspected breaches of the Code of Conduct may need to be dealt with by way of a determination. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate.

2. Selection of decision maker

Subject to the Agency Head having made a selection, the person who determines whether an APS employee has breached the Code of Conduct is to be selected by [name or title of person].

3. Formal hearing not required

For the purpose of determining whether an APS employee in an Agency has breached the Code of Conduct, a formal hearing is not required.

4. Information to be given to employee before determination is made

1. Before a determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, the employee must:
   1. be informed of: i the details of the suspected breach of the Code of Conduct (including any variation of those details) ii the sanctions that may be imposed on the employee under subsection 15 (1) of the Act (including any limitations on that power contained in regulations made for the purposes of subsection 15 (2) of the Act)
   2. be given reasonable opportunity to make a statement, in writing, in relation to the suspected breach within 7 days or any longer period as is allowed.
2. If the employee makes a written statement within 7 days (or, if allowed, any longer period) of being given the opportunity to do so, the employee must also be given the opportunity to make an oral statement in relation to the suspected breach.
3. An employee who does not make a written statement in relation to the suspected breach is not, only for that reason, to be taken to have admitted committing the suspected breach.

5. Determination process to be informal

The process for determining whether an APS employee has breached the Code of Conduct must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

6. Person making determination to be independent and unbiased

1. An Agency Head must take reasonable steps to ensure that the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased.
2. In particular, a person must not determine whether the employee has breached the Code of Conduct if the person has previously made a report in relation to any of the matters suspected of constituting a breach by the employee of the Code of Conduct.

7. Action that may be taken if breach found to have occurred

1. If a determination is made that an APS employee has breached the Code of Conduct, the employee may be counselled or a sanction may be imposed on the employee under section 15 of the Public Service Act 1999.
2. If a sanction is imposed on the employee, the employee must be given a written statement setting out the reasons for the determination and the imposition of the sanction.

8. Record of determination

After a determination in relation to a suspected breach of the Code of Conduct by an APS employee is made, a written record stating whether the employee has been found to have breached the Code of Conduct must be prepared.
Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.

9. Appropriate procedures if basis of APS employee's engagement in an agency changes or employee moves to a different agency

1. This clause applies if:
   1. an APS employee in an Agency is suspected of having breached the Code of Conduct
   2. before any determination is made in relation to the suspected breach: i the basis of the employee's engagement in the Agency changes ii the employee moves to a different Agency.

Note: Examples of a change in the basis of an APS employee's engagement in an Agency are as follows:

1. a change from engagement for a specified term, or for the duration of a specified task, to engagement as an ongoing APS employee
2. a change from engagement for duties that are irregular or intermittent to engagement as an ongoing APS employee.

1. A determination (if any) in relation to the suspected breach must be made:
   1. if the basis of the employee's engagement in the agency has changed-in accordance with the procedures applicable to the basis of the employee's engagement in the agency at the time the process for determining whether the employee has breached the Code of Conduct is commenced
   2. if the employee has moved to a different agency-in accordance with the procedures applicable in the agency to which the employee has moved at the time the process for determining whether the employee has breached the Code of Conduct is commenced.

Appendix 3: Employee suspension checklist

Deciding whether or not to suspend ²³

• Is it in the public interest, or the agency's interest, to remove the employee from the workplace?
• Has re-assignment of duties been considered as an option?
• Is it clear that the decision maker is not prejudging and is seen as not prejudging whether the employee has breached the Code?

When imposing suspension

• Will the suspension be with pay or without pay?
• Has there been an opportunity for the employee to make a statement before the suspension is implemented?
• Has the employee been advised of the possible length of the suspension and of his/her ongoing status (e.g. attendance at training courses previously booked, entitlement to apply for vacancies, access to the work premises)?

Where suspension is without pay

• Has the employee been advised about possible access to leave credits?
• Has the employee been advised about the length of the period of suspension and the fact that he/she could seek outside employment?

During suspension

• Is the suspension being reviewed at reasonable intervals?
• Are there exceptional circumstances warranting the extending of unpaid suspension beyond 30 days?

Where it is determined that the employee suspended without pay has not breached the Code of Conduct

• Is salary forgone during suspension to be reinstated or is there a case for not doing so?
• Is it appropriate to re-credit any paid recreation leave or long service leave applied for during suspension?
• Is it appropriate to take outside earnings into account before reinstating forgone salary?

Terminating the suspension

• Has a sanction been imposed on the employee for the relevant breach? OR
• Does the agency head no longer believe that the employee has or may have breached the code? OR
• Does the agency head no longer believe that the suspension is in the public interest or in the agency's interest?

At the conclusion of the period of suspension

• Is it necessary to decide whether the period of suspension counts as service?
• Has the appropriate documentation been completed?

Appendix 4: Relevant records in National Archives of Australia Administrative functions disposal authority, February 2000

Records relating to Code of Conduct cases—Administrative functions disposal authority ²⁴

PERSONNEL—Counselling
'The activities associated with giving advice or guidance to an employee for various reasons'.

Entry No	Description of records	Disposal Action
1702	Records documenting general counselling of staff . Includes personal counselling work performance counselling counselling for minor breaches to the Code of Conduct [For counselling relating to disciplinary action use PERSONNEL—discipline]	Destroy 2 years after action completed

PERSONNEL—Performance management
Sometimes minor conduct issues are dealt with in performance management contexts. Also conduct issues can be taken into account in assessing performance and related decisions such as salary advancement or the payment of pay bonuses etc.

Entry No	Description of records	Disposal Action
1734	Performance agreements with individual employees. Includes final version of agreement, notes from meetings with employees and assessment and review reports.	Destroy 2 years after agreement is superseded

PERSONNEL—Discipline
'The activities and actions associated with the disciplinary process. Includes investigation, charges, formal inquiries, punishment and appeals'

Entry No	Description of records	Disposal Action
1704	Records documenting investigations of misconduct (e.g. a breach of the Code of Conduct) by either the agency or an external body, which result in disciplinary action being taken	Destroy 5 years after action completed
1705	Records documenting allegations into misconduct where no follow-up investigation is made (i.e. where allegations are proved to be frivolous or vexatious).	Destroy 18 months after action completed
1706	Records documenting investigations of misconduct which are investigated, either by the agency or by an external authority, and where allegations are proved to be unfounded and the employee has requested the retention of the records.	Destroy 75 years after date of birth of employee or 7 years after last action, whichever is later, or when requested by the employee
1707	Records documenting investigations of misconduct which are investigated, either by the agency or by an external authority, and where allegations are proved to be unfounded and the employee has not requested the retention of the records	Destroy 18 months after investigation completed

PERSONNEL—Reviews (Decisions)

Entry No	Description of records	Disposal Action
1759	Records documenting reviews of actions, other than reviews of promotion decisions, either carried out within the agency or by an external authority.	Destroy 5 years after action completed

LEGAL SERVICES—Litigation

Entry No	Description of records	Disposal Action
1585	Records documenting litigation matters where legal precedents are set	Retain as national archives
1586	Records relating to litigation matters that do not set legal precedents	Destroy 7 years after action ceases

LEGAL SERVICES—Advice

Entry No	Description of records	Disposal Action
1570	Records documenting all other advice [i.e. than re interpretation of an agency's own legislation etc ] received from an internal or external legal service provider	Destroy 5 years after action completed.

Records of matters that might trigger a Code of Conduct investigation

Agencies may keep a variety of records on matters that may sometimes give rise to formal Code of Conduct investigations. Such records include records of investigations of grievances and allegations by whistleblowers, infringements of rules, security or privacy breaches.

PERSONNEL—Employment conditions

Entry No	Description of records	Disposal Action
1719	Attendance records for employees where agency agreements or individual employee agreements do not allow for the payment of overtime ..	Destroy 2 years after action completed

PERSONNEL—Grievances
'The activities associated with the handling and resolution of grievances. Includes handling complaints over perceived discrimination… or those arising over work environment, …peers, supervisors or subordinates.'

Entry No	Description of records	Disposal Action
1722	Records documenting formal grievances lodged by an individual employee and considered either internally within the organisation and/or by an external body. Includes notes of meetings, reports and recommendations. For records covering disciplinary action resulting from a grievance use PERSONNEL—discipline	Destroy 5 years after action completed

PERSONNEL—Infringements
'The activities associated with handling breaches of rules. Includes driving or traffic infringements and infringements of an organisation's intellectual property.'

Entry No	Description of records	Disposal Action
1723	Records documenting infringements by an employee. [For infringements that lead to disciplinary action use PERSONNEL—discipline]	Destroy 18 months after action completed

LEGAL SERVICES—Infringements

Entry No	Description of records	Disposal Action
1581	Records documenting infringements or breaches of mandatory standards, rules or statutory requirements that do not proceed to litigation. Includes notifications of breaches and investigations and negotiations.	Destroy 7 years after action ceases

Alleged Privacy and Security breaches

The retention of records relating to alleged privacy breaches, security breaches etc is dealt with other sections of AFDA e.g. the sections on information management, property management, equipment and stores and technology and communications.
In broad terms, records relating to minor security incidents or breaches or alleged privacy breaches can be destroyed after a period ranging from 5 years after an incident to 7 years after action is completed.

[Records relating to minor security breaches or incidents relating to property can be destroyed 5 years after the incident; records relating to alleged privacy breaches can be destroyed after 5 years after the investigation and records relating to breaches relating to classified material can be destroyed 5 years after the last action; reports on leaks and investigation into alleged security breaches relating to technology and communications and referral of those breaches to law enforcement authorities to law enforcement authorities— destroy 7 years after action is completed.]

However, records of major security breaches or incidents (e.g. which result in the laying of charges), including records of referral to law enforcement authorities, are retained as national archives.

Records kept for the duration of an employee's career

PERSONNEL—Security
'The activities associated with measure taken to protect people, premises, equipment or information from accidental or intentional damage or from unauthorised access. Includes the security classification of personnel and criminal record checks'.

Entry No	Description of records	Disposal Action
1766	Records documenting security checks (vetting) carried out as part of pre-engagement and preemployment checks, or periodic reviews.	Destroy 5 years after separation from the APS or 6 years after the date of the last clearance on file, whichever is sooner.

PERSONNEL—Employment conditions
'The activities associated with managing the general conditions of employment for personnel'

Entry No	Description of records	Disposal Action
1709	Records documenting the consolidated employment history of all ongoing employees…and SES employees from initial appointment and subsequent promotions and details of higher duties undertaken. Includes: details of assigned duties (initial and subsequent variations) probation reports declarations of pecuniary interests undertakings to preserve official secrets.	Destroy 75 years after date of birth of employee or 7 years after last action, whichever is later
1711	Records documenting the appointment of non- ongoing employees	Destroy 7 years after termination of appointment
1715	Records documenting the reduction in classification of an APS employee either with or without the employees consent	Destroy 75 years after date of birth of employee or 7 years after last action, whichever is later

PERSONNEL—Salaries
Employee pay history records may document the carrying out of sanctions on an employee whom it has been determined has breached the Code of Conduct and/or contain information about periods of suspension if this was not on full pay.

Entry No	Description of records	Disposal Action
1761	Records documenting the payment of employee's salaries. Includes: Employee pay history records	Destroy 75 years after date of birth or 7 years after last action, whichever is later

PERSONNEL—Separations

Entry No	Description of records	Disposal Action
1767	Records documenting the separation of ongoing employees and SES employees. Includes: resignation dismissal	Destroy 75 years after date of birth or 7 years after last action, whichever is later
1768	Records documenting the termination of a non- ongoing employee before the completion of a specified term of engagement	Destroy 7 years after termination

Appendix 5: Checklist of key points for agency guidance material

Agency guidance material—Checklist

Overview of a process for handling misconduct (Chapter 2)

• an employee's responsibility to uphold the Values and the Code
• what constitutes misconduct illustrated by agency specific examples within and outside of the workplace
• the relationship between any agency-based codes and the APS Code the preferred approach to the interaction between managing misconduct and underperformance within the agency
• the rights of an employee who is being investigated in relation to a suspected breach of the Code.
• links to agency material/training on the Code available to employees and links to Commission material if relevant (e.g. APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads).

Reporting suspected misconduct (Chapter 3)

• encouragement of employees to report suspected misconduct as part of their duty as an APS employee
• the different options available to employees to report misconduct
• the protections available to employees who report misconduct
• how to treat or collect any evidence prior to reporting. It could include advice that employees:
• make notes on what they have seen or heard
• provide written records on any action the employee has taken
• keep any relevant documents and not make any written annotations on them
• report the matter but otherwise keep the matter confidential.

Considering a report of suspected misconduct (Chapter 4)

• identifying who is responsible for deciding whether suspected misconduct will be handled through the misconduct procedures or alternate procedures
• providing examples of suspected misconduct that the agency considers should usually be handled under the misconduct procedures
• identifying alternative methods of handling suspected misconduct
• determining when a misconduct action should commence once a report of suspected misconduct has been received
• the recordkeeping requirements for employee discussions/counselling sessions and what to do if the employee's conduct does not improve or deteriorates further
• circumstances in which an employee may be suspended, with or without pay, or assigned other duties
• procedures for managing suspension and assignment of duties that identify who is responsible for decision making.

Investigative process (Chapter 5)

• outline agency procedures for appointment, alert the decision maker (and investigator if roles are separated) to the need to be vigilant about circumstances that might give rise to claims of bias, and what to do if such claims are made
• direct the decision maker (and investigator if roles are separated) to comply with the agency's section 15(3) procedures
• describe agency procedures for conducting an investigation including advice on issues such as preparing records of discussion and taking witness statements
• provide advice 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 legislative requirement (generally reiterated in the agency section 15(3) procedures) that the investigation should 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 prior to commencement and, subsequently, in taking time to review the process to ensure all available relevant evidence has been collected
• note the important principles in weighing up the evidence and the key features of the written report
• cover the handling of situations where evidence does not support misconduct having occurred
• provide contact points for support and advice.

The determination and sanction (Chapter 6)

• advice on the role of the decision maker
• advice for the decision maker on the breach about preparing a decision record— agencies may wish to consider developing a template
• advice on how to handle a case where an employee moves to another agency
• an explanation of the sanctions that can be used
• 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 references to sources of advice such as data bases, HR personnel
• handling the process of notifying the employee of a proposed sanction.

Recordkeeping and access to records (Chapter 7)

• agency recordkeeping procedures and appropriate contact points within the agency
• the agency's policies on the retention and disposal and associated records policies including clear delineation of roles and responsibilities of misconduct
• guidance on consideration of misconduct records for selection committees. Such guidance may more appropriately placed in the agencies recruitment and selection procedures—for example, including a requirement on any personal details form for prospective employees to declare any misconduct procedures.

Review of actions (Chapter 8)

• While it is not a PS Act requirement to notify employees of their review rights, it would be good practice to include some information in agency guidance material.

Appendix 6: Sample clauses for inclusion in agency Code of Conduct investigation procedures—Disclosure of information

Below are sample clauses agencies may wish to include in their Code of Conduct investigation procedures relating to the disclosure of personal information.

Clause 1—defining personal information (refer cIRCULAR 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 10)

Personal information is defined in section 6 of the Privacy Act 1988 as 'information or an opinion…about an individual…whose identity is apparent, or can reasonably be ascertained, from the information or opinion'. {Agency} will ensure that, where appropriate, necessary and reasonable, personal information about an employee under investigation will remain confidential.

Clause 1a—sensitive information (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 12)

Sensitive information is defined in section 6 of the Privacy Act as 'information or an opinion about an individual's racial or ethnic origin or political opinions or membership of a political association or religious beliefs or affiliations or philosophical beliefs or membership of a professional or trade association or membership of a trade union or sexual preferences or practices or criminal record that is also personal information or health information about an individual or genetic information about an individual that is not otherwise health information'. Special care should be taken in the handling of sensitive information. Sensitive information should generally not be disclosed to a third party without the express consent of the individual concerned.

Clause 2—to whom the personal information may be disclosed (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 41)

During the course of a Code of Conduct investigation, or after the investigation is complete, personal information about an employee under investigation may, where necessary, appropriate and reasonable, be disclosed to others (in accordance with IPP 2), including:

• the complainant
• other Commonwealth bodies who have been involved in the matter, such as the Commonwealth Ombudsman, the Office of the Privacy Commissioner or the Inspector-General of Intelligence and Security
• an APS agency where the employee moves or seeks to move in the future.

Clause 2a—disclosure of personal information to the employee (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraphs 27–33)

During the course of a Code of Conduct investigation, or after the investigation is complete, in accordance with the principles of procedural fairness, the employee may be provided with personal information about an individual who is a party to the investigation. This may include the complainant and any witnesses to the investigation. Disclosure of information about the complainant and any witnesses to the respondent employee or others should be done in accordance with the agency's obligations under the Privacy Act.

Clause 3—opportunity to make a case as to why information should not be disclosed (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 31)

Where {agency} is considering disclosing personal information about an employee to another person, body or agency, the employee will be advised in writing and given the opportunity to make a case prior to the information being disclosed, as to why their personal information should not be disclosed. The employee will have {number} days to provide a case, in writing, to the investigating officer.

Clause 4—agency may disclose general information (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraphs 36–40)

Prior to disclosing information about the outcome of a Code of Conduct investigation, {agency} will have due regard to the Privacy Act 1988, including determining whether personal information will be used or disclosed and in what circumstances. General information containing no personal information may be disclosed to others where {agency} considers it necessary, appropriate and reasonable to do so.

Appendix 7: Letter to complainants advising the outcome of a Code of Conduct investigation

Disclosure of personal information under IPP 11 regarding misconduct should be managed in such a way that an employee's identity will not be revealed where it is not necessary, appropriate and reasonable to do so. This is particularly important where the complainant is employed at the same agency as the individual under investigation. Care should be taken not to disclose any additional information about the employee to the complainant.
See paragraphs 34–40 and Attachment B of the Australian Public Service Commission's Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, for further information on factors to consider prior to releasing information.
The following is a sample letter to complainants advising the outcome of a Code of Conduct investigation, which provides information to the complainant without releasing personal information about the employee. However, agency heads can exercise discretion to disclose personal information in some circumstances having regard to their IPP obligations in the handling of this information.
Agencies may choose to provide a greater level of information to the complainant, such as the reasons for not finding a breach or the sanction that was imposed. Where agencies consider it inappropriate to provide information regarding the sanction, they may choose to provide the range of sanctions that have been imposed following similar cases which occurred in the past.

Sample letter

Dear {complainant}
I am writing in relation to your complaint about {nature of complaint}, which you forwarded to {agency} on {date}.
An investigation of this matter has been conducted in accordance with {agency's} Code of Conduct investigation procedures. This investigation has now been finalised.
{May insert one of the following}
As a result, a breach of the Code of Conduct was found and a sanction imposed under section 15 of the Public Service Act 1999.
In addition, {agency} will undertake to {remedial action e.g., train staff, improve agency procedures} to ensure this situation does not arise in the future.
OR
As a result, no breach of the Code of Conduct was found in this case. However, {agency} will undertake to {remedial action e.g., train staff, improve agency procedures} to ensure such a situation does not arise in the future.
OR
As a result, no breach of the Code of Conduct was found in this case.
Please contact, etc.

---

1 APS Values and Code of Conduct in practice
2 Respect: Promoting a culture from from bullying and harassment
3 The Freedom of Information Act 1982 would also apply.
4 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).

5 Conditions of engagement
6 Purvis v NSW and HREOC [2003] HCA 62; (2003) 202 ALR 133.
7 See for example Cunningham v ABS, Full Bench Decision, PR963720, 10 October 2005 and AGS Legal Briefing No. 80, Misconduct in the Australian Public Service, 24 October 2006.
8 Baker v Commissioner AFP (2000) 104 FCR 359; Elliot v APRA [2004] FCA 586; Sullivan v Secretary, Defence [2005] FCA 786. See also discussion in AGS Legal Briefing No. 80.
9 Legal Briefing No 80, Misconduct in the Australian Public Service, 24 October 2006.
10 APS Values and Code of Conduct in practice
11 Crime and Misconduct Commission (2004) Speaking Up—Creating Positive Reporting Climates in the Queensland Public Sector, Building Capacity Series, No. 6 page 2.
12 Australian Public Service Commission, State of the Service Report 2003–04, Chapter 6, Personal Behaviour.
13 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.
14 The term remuneration 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, and other salary related payments including those associated with the performance of extra duties (overtime but excluding overtime meal allowance) and shifts (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 on-going nature (e.g. including cost reimbursement allowances such as a temporary accommodation allowance).

15 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 [2005] FCAFC 197.
16 Masters, V., 'How to brief an external investigator', AGS HR Practitioners' Forum, 21 February 2008; APSC; Spry, M., 'Natural justice and investigations into public sector misconduct', AIAL Seminar, Canberra, 30 October 2007
17 Ibid
18 Terminating APS emmployment
19 It is possible for more than one sanction to be applied for an employee found to have breached the APS Code if the person imposing the sanction is satisfied that more than one sanction is appropriate in the circumstances and can give a proper reason for their decision.
20 Agencies should note the decision of the AIRC in Walsh v Australian Taxation Office [PR951810], Sydney, 4 March 2005.
21 Agencies should refer to the Commission publications Ongoing Employment—Recruitment and Selection and Conditions of Engagement for advice on pre-employment misconduct and imposing conditions of engagement.
22 Clause 10 of Schedule 1 of the Regulations provides that:
An action that determines, under section 25 of the Act, duties of an APS employee, or the place or places where they are to be performed, unless the action involves:

1. a reduction in classification
2. a relocation to another place
3. a promotion that meets the following criteria:
   1. the affected employee was an applicant for the promotion
   2. the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules
   3. there were serious defects in the selection process
4. the assignment to an employee of duties that the employee could not reasonably be expected to perform.

23 Regulation 3.10 requires that an Agency Head may suspend an APS employee employed in the agency from duties if the Agency Head believes on reasonable grounds that:

1. the employee has, or may have, breached the Code of Conduct; and
2. the employee's suspension is in the public, or the agency's interest.

24 <http://www.naa.gov.au/recordkeeping/disposal/authorities/gda/AFDA/summary.html>

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