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APS Code of Conduct
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Last updated: August 2010
Review of breaches of the APS Code of Conduct
Role of the Merit Protection Commissioner
The Merit Protection Commissioner is an independent statutory office holder established under section 49 of the Public Service Act 1999 (the Act). Among other functions, the Merit Protection Commissioner conducts reviews of employment-related decisions and other actions affecting individual Australian Public Service (APS) employees.
The Merit Protection Commissioner is assisted by staff of the Australian Public Service Commission.
Breaches of APS Code of Conduct
The APS Code of Conduct is in section 13 of the Act. The code sets out the standards of personal behaviour expected of APS employees in their relationships with the Government, the public and their colleagues. If, after an investigation by their agency, an employee is found to have breached the code, a sanction, ranging from a reprimand to termination of employment, may be imposed.
An employee may be suspended from duty while their agency investigates whether or not they have breached the code.
Review of code breaches and sanctions
Generally reviews of employment actions and decisions are undertaken first by the agency (primary review) with the right of a secondary review by the Merit Protection Commissioner (see Review of Actions).
However, in the case of findings relating to Code of Conduct breaches, the legislation provides for the primary review to be conducted by the Merit Protection Commissioner.
This applies to a finding that an APS employee has breached the code and to sanctions imposed as a result of that finding.
A decision to terminate an employee’s employment is not reviewable by the Merit Protection Commissioner.
Review of suspension decisions
A decision to suspend an employee from duty may also be reviewed. In this case, the application must be made in the first instance to the employee’s agency head. The Merit Protection Commissioner is able to conduct a secondary review once the matter has been considered by the agency.
There are circumstances in which an application for review of a suspension decision can be made directly to the Merit Protection Commissioner (see Review of Actions).
Making an application for review does not prevent an agency from proceeding with an action, or implementing a decision, that is subject to a review application.
Who is eligible?
Current APS employees, with the exception of the Senior Executive Service, are eligible to apply for review.
Time limits for review applications
On 2 August 2010, changes to the Public Service Regulations came into effect that alter the time limits for making an application for review.
The changes are designed to better meet the policy objectives that reviews be conducted quickly, fairly and impartially and that productive and harmonious workplaces be encouraged.
There will be a transition period in which the time limits for review will vary. This will depend on the date of the action, or decision, which the employee wishes to have reviewed. The critical date is 2 August 2010.
Before 2 August 2010
For Code of Conduct decisions made before 2 August 2010, an employee must apply for a review within 12 months of the decision.
Applications received outside that timeframe will only be reviewed if there are exceptional circumstances to explain the delay in making the application.
From 2 August 2010
Code of Conduct decisions made on or after 2 August 2010 are subject to revised time limits. The time limits are:
- For applications for primary review of a decision that an employee has breached the Code of Conduct – 60 days from the determination of the breach
- For applications for primary review of a sanction imposed for breaching the Code of Conduct – 60 days from the imposition of the sanction.
Applications received outside that timeframe will only be reviewed if there are exceptional circumstances to explain the delay in making the application.
Further details are on the new time limits are available on the website at the following pages:
How do you apply for review?
An application for review to the Merit Protection Commissioner should be addressed to:
Review Manager
Australian Public Service Commission
PO Box 20636
World Square Post Office
Sydney NSW 2002
The review application must be made in writing and state:
- why the review is sought
- if a particular outcome is sought, the outcome sought.
How will your application for review be handled?
Reviews conducted by the Merit Protection Commissioner are required to have regard to procedural fairness, be conducted in private and be finished as quickly, and with as little formality, as a proper consideration of the matter allows.
First, staff assisting the Commissioner will acknowledge the receipt of your application and advise you whether it has been accepted. Then, the reviewer will ask your agency for copies of all relevant papers.
In some cases, it may be possible to conduct the review solely by an examination of the papers.
Where necessary, the reviewer may investigate further by seeking additional information from your agency and by interviewing you and/or other persons.
While you are welcome to have a person support you throughout the review you are not able to be represented by another person. If you wish to have someone represent you, you need to make a formal request to the Merit Protection Commissioner stating your reasons.
In cases involving breaches of the code a review will address:
- whether your agency’s procedures for determining breaches of the code comply with Chapter 5 of the Public Service Commissioner’s Directions (in broad terms, this requires agencies to observe procedural fairness)
- whether your agency substantially complied with those procedures in your case
- whether there is enough evidence that you committed the act or acts found to have breached the code
- if there is, whether that act or acts amounted to a breach of the code
- if they did, whether the sanction imposed on you was appropriate in the circumstances.
Outcome of the review
The Merit Protection Commissioner can make recommendations to your agency head about the matters under review. The Merit Protection Commissioner cannot impose an outcome on your agency or substitute a different decision for that made by your agency.
When the review is finished you will be advised of the result and what recommendation the Commissioner has made to your agency.
If it is concluded that the agency has not acted wrongly, the Commissioner will explain to you why that view was reached.
On the other hand, if the Merit Protection Commissioner is satisfied that the decision under review was in some way unreasonable, the Commissioner may recommend that the agency:
- set aside the decision and consider whether the process should be re-done, before another delegate
- vary the decision
- change its procedures
- take some other appropriate action.
The Commissioner cannot force an agency to do what is recommended. However:
- Agencies usually act on the Commissioner’s recommendations and are required to give reasons for their decisions.
- If the Commissioner is not satisfied with the response to one of the recommendations, the Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.
What if you are still not satisfied?
There is no further right of administrative review under the Act or the Regulations.
To take the matter further, you would need to apply to a court for judicial review, under the general law or the Administrative Decisions (Judicial Review) Act 1977. In such cases, it would be prudent to seek independent legal advice.
Who to contact
Inquiries should be directed to the Review Team, Australian Public Service Commission Sydney, on phone: 02 8239 5330 or by email to review@apsc.gov.au.
Frequently asked questions
General questions
When does the 60 or 120 days start?
Day 1 is the first day after the employment action occurs.1
What if Day 60 or 120 is not a work day?
If Day 60 or 120 is a Saturday, a Sunday or a public holiday, then the period extends to the next working day.2 The application would be in time until close of business on that next working day.
Can an application for review be accepted outside the relevant time limits?
An application made outside the relevant time limits is not reviewable unless the agency or the Merit Protection Commissioner agrees with the applicant that there are exceptional circumstances for the delay. The term ‘exceptional circumstances’ is not defined in the Regulations. However, the term ‘exceptional’ has a commonly accepted meaning. It describes a circumstance which is out of the ordinary course, or unusual or special or uncommon. This is consistent with the definition in the Macquarie Dictionary of ‘exceptional’ which it defines as ‘forming an exception or unusual instance; unusual; extraordinary’.
A decision by an agency to accept an out of time primary review application does not oblige the Merit Protection Commissioner to accept a subsequent request for secondary review that is out of time. The two decisions are separate ones and the exceptional circumstances ‘test’ must be met on both occasions.
When is the best time to lodge an application for review?
Employees are encouraged to lodge their application for review as soon as possible after the employment action in question occurs. There are benefits in doing this:
- people’s recollections of events or decisions are usually less accurate as time passes
- the employee’s concerns can be addressed which may prevent further escalation of conflict
- by dealing with the issue the workplace can become more harmonious and productive again
- desired review outcomes may be more achievable in the shorter term given changes that can occur in workplaces.
Such an approach is consistent with the intent of the Regulations that an employee’s concerns are to be dealt with quickly, impartially and fairly.5
Scenarios
1. Scenarios involving employment actions occurring on or after 2 August 2010
The scenarios below assume that there are no exceptional circumstances for a delay in applying for review.
Code of Conduct
Scenario 1(d):
On 2 August 2010 Lee receives a letter advising that the delegate has determined that he has breached the Code of Conduct and seeking his comments on a possible sanction. Lee has 60 days to lodge a review application with the Merit Protection Commissioner in relation to the breach determination. In this scenario, the application needs to be lodged by close of business (COB) 1 October 2010.
Lee would like to wait and see what, if any, sanction is imposed before he lodges his review application on the breach determination. He is informed of the sanction on 6 September 2010. Lee now has until COB 5 November 2010 to lodge his application for review of the sanction decision with the Merit Protection Commissioner. The date to lodge a review application for the breach of the Code of Conduct is unchanged.
If Lee applies for a review of both the breach determination and the sanction decision by COB 1 October 2010 he would meet the time limit for review of both determinations. If he applies for a review of both the breach determination and the sanction decision on or after 2 October 2010 and before COB 5 November 2010:
- the breach determination would be outside the 60 day time limit
- the sanction decision would be within the 60 day time limit.
2. Scenarios involving employment actions occurring before and after 2 August 2010
The scenarios below assume that there are no exceptional circumstances for a delay in applying for review.
Scenario 2(b):
On 27 July 2010 George received a letter advising that the delegate had determined that he had breached the Code of Conduct and seeking his comments on a possible sanction. George has one year (until close of business (COB) 27 July 2011) to lodge an application for review of the Code breach determination with the Merit Protection Commissioner.
He is informed of the sanction decision on 20 August 2010. George has 60 days (until COB 19 October 2010) to lodge his review application on the sanction decision with the Merit Protection Commissioner unless there are exceptional circumstances.
3. Scenarios involving employment actions occurring before 2 August 2010
The scenarios below assume that there are no exceptional circumstances for a delay in applying for review.
Scenario 3(b):
On 25 November 2009 Amrita received a letter advising that the delegate had determined that she had breached the Code of Conduct and seeking her comments on a possible sanction. Amrita has one year to lodge an application for review of the Code breach determination with the Merit Protection Commissioner (by close of business 25 November 2010).
She is informed of the sanction on 3 February 2010. Amrita has one year (until 3 February 2011) to lodge her review application of the sanction with the Merit Protection Commissioner.
1. Acts Interpretation Act 1901 s36(1)
2. Acts Interpretation Act 1901 s36(2)
3. Public Service Regulation 5.29(2)
4. Public Service Regulation 5.30(1)
5. Public Service Regulation 5.1(3)
