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Last updated: 19 February 2007

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

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).

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.

 

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 <http://www.apsc.gov.au/publications02/terminations.htm>

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.

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