Chapter 7: Personal behaviour
Breaches of the Code of Conduct
The agency survey sought information from agencies about the number of formal investigations commenced into suspected breaches of the Code of Conduct in 2002–03.1 This is the first year that agencies have been asked for this information. Responses indicated that there is wide variation amongst agencies in the number of investigations into suspected breaches of the Code of Conduct, which is not explained by agency size. During 2002–03, 46 agencies commenced 926 formal investigations into suspected breaches of the Code. No investigations were commenced in 43 agencies. Investigations were commenced in 22% of small agencies, 62% of medium agencies and 95% of large agencies.
Sixty per cent of all investigations were commenced in just three large agencies (Centrelink, Defence and CSA), and 32% of all investigations were conducted by Centrelink (298). Amongst large agencies, seven reported less than three formal investigations for every 1000 employees (DOTARS, ASIC, ABS, Health, DEH, DAFF and BOM) and three agencies reported more than 15 formal investigations for every 1000 employees (DVA, Protective Service and CSA).
It should be noted that there is likely to be a range of factors affecting the rate of formal investigations in agencies, including:
- the nature of an agency’s business, including its sensitivity to inappropriate behaviour and the capacity of that behaviour to undermine an agency’s operations
- the approach taken by agencies to the overall management of breaches of the Code of Conduct and the degree to which they systematically apply and monitor its adherence
- the incidence of inappropriate behaviour.
Agencies indicated that suspected breaches of the Code in 2002–03, including those that did not result in a formal investigation, were identified in a variety of ways. The two most common were that the conduct was identified by the supervisor/manager or by work colleagues (suspected breaches were identified by each of these means in 35% of all agencies). Twenty-one per cent of all agencies indicated that breaches were identified through the agency’s compliance/monitoring systems (e.g. audit) and 19% of all agencies indicated that suspected breaches were identified from a complaint from the public or other stakeholder. Twelve per cent of agencies identified suspected breaches as a result of a whistleblower report under s. 16 of the PS Act. A small number of investigations arose through other means, including notification of a suspected breach from another APS agency, a complaint from an ex-employee, and referral by the Australian Federal Police (AFP).
Table 7.1 sets out the frequency with which particular elements of the Code were suspected of being breached in the investigations commenced during 2002–03, and the number of agencies that reported undertaking an investigation that involved a suspected breach of that element of the Code.
Table 7.1: Elements of the Code of Conduct suspected of being breached in investigations commenced during 2002–03 (a)
| Element of the Code | No. of times element was suspected of being breached | No. of agencies commencing investigations |
|---|---|---|
| An APS employee must: | ||
| at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS | 293 (b) | 33 |
| use Commonwealth resources in a proper manner | 255 (b) | 33 |
| behave honestly and with integrity in the course of APS employment | 233 (b) | 30 |
| when acting in the course of APS employment, treat everyone with respect and courtesy, and without harassment | 232 | 31 |
| comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction | 219 | 20 |
| when acting in the course of APS employment, comply with all applicable Australian laws | 187 | 19 |
| act with care and diligence in the course of APS employment | 130 (b) | 21 |
| disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment | 123 | 16 |
| not make improper use of: inside information, or the employee’s duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person | 49 | 17 |
| not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment | 28 | 10 |
| except in the course of his or her duties as an APS employee or with the agency head’s express authority, not give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge | 11 | 4 |
| while on duty overseas, at all times behave in a way that upholds the good reputation of Australia | 8 | 3 |
| maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff | 3 | 2 |
Note: (a) An investigation may involve more than one employee, and/or a suspected breach of more than one element of the Code. An employee may also be suspected of breaching an element of the Code more than one time as part of a single investigation. Some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations. (b) One agency did not provide the actual number of times that those elements of the Code indicated had been breached, but reported only that each had been breached ‘several’ times; hence the number of times the various elements were breached should be viewed as indicative only.
Source: Agency survey
The element of the Code that was suspected of being breached the greatest number of times overall was s. 13(11) of the PS Act—an APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS. Investigations into possible breaches of s. 13(11) were commenced in 15% of small agencies, 42% of medium agencies and 73% of large agencies. Discussions with some of the agencies that reported a suspected breach of this element indicated that the types of behaviours that were considered to breach this element of the Code included inappropriate or unauthorised use of the internet or email, inappropriate behaviour towards clients, a breach of customer privacy, inappropriate disclosure of information, unprofessional and unethical behaviour, theft of office equipment, inappropriate use of resources and inappropriate behaviour outside the workplace which could damage the reputation of the agency. It appears that when agencies conduct investigations into suspected breaches of the Code of Conduct, this element is often cited in conjunction with other elements of the Code.
Table 7.2 shows the outcomes of investigations commenced during 2002–03 into suspected breaches of the Code of Conduct by agencies.
Table 7.2: Outcomes of investigations into suspected breaches of the Code of Conduct (a)
| Outcome | No. of times | No. of agencies |
|---|---|---|
| Termination of employment | 70 | 13 |
| Reduction in classification | 28 | 10 |
| Reduction in salary | 359 | 9 |
| Deduction from salary by way of a fine | 113 | 15 |
| Reassignment of duties | 24 | 9 |
| Reprimand | 176 | 26 |
| Counselling | 75 | 29 |
| Other (b) | 94 | 19 |
| Investigation discontinued | 30 | 8 |
| Investigation still in progress | 218 | 26 |
| No breach found | 122 | 16 |
Note: (a) More than one sanction may be imposed on each employee as a result of an investigation; hence there may be multiple outcomes from one investigation. Some agencies may have provided information on the outcomes of both formal and informal investigations. (b) A number of the responses under ‘Other’ were that the employee under investigation resigned.
Source: Agency survey
The employment of 70 employees from 13 agencies was terminated as a consequence of misconduct during 2002–03. Two small agencies each terminated the employment of one employee. The remaining terminations occurred in 11 large agencies with Defence and Centrelink accounting for 67% of terminations. Reductions in classification occurred in ten large agencies only, with 50% of reductions occurring in Centrelink. Nine agencies reduced the salary of 359 employees. One large agency, Centrelink, accounted for 94% of salary reductions.
While sanctions need to take into account the context of the breach, and similar breaches in different agencies may well have different levels of importance, the data provided by large agencies suggest significant differences in the imposition of sanctions. The sanctions that have the greatest impact on employees—termination of employment, reduction in classification and reduction in salary—were calculated as a proportion of the total number of sanctions imposed by each of the 22 large agencies. The imposition of the high-impact sanctions varied between 0% and 73% amongst large agencies. High impact sanctions were not used at all in seven large agencies and were between 10% and one third of total sanctions in 13 large agencies and were greater than a third of total sanctions in two large agencies. Calculation of the number of times that no breach was found as a percentage of the number of investigations undertaken in each of the large agencies also shows a wide range of results, varying between 0% at one extreme and 75% at the other.
The large differences amongst agencies in the types of sanctions imposed and in the proportion of cases where no breach was found may reflect in part the nature of the work of different organisations and the varying importance placed on particular APS Values, elements of the Code of Conduct, or agency values, principles or behaviours. Variations may also indicate that some agencies take a stronger line in relation to sanctions, or that other agencies are relatively lenient. The recently released good-practice guide, Embedding the APS Values, highlights the importance of employees knowing the consequences of breaching the Code of Conduct, and being confident their agency will address suspected breaches in a timely, rigorous and systematic way, and in a manner consistent with relevant legal principles. The agency survey data seems, prima facie, to suggest some agencies are less rigorous and systematic in their processes than they should be.
Appropriate and consistent investigations and imposition of sanctions
In response to the agency survey, 99% of agencies indicated that they either have (91%) or are developing (8%) measures to ensure that the processes used to investigate suspected breaches of the Code are appropriate and consistent across the agency. The response rate did not vary greatly on the basis of agency size.
The most commonly used measure is the provision of guidance and support by Human Resources (HR)/Employee Relations to people conducting investigations (89%). The next most commonly used measure is making detailed procedural guidance (explanatory material) available to people conducting investigations (62%). Other measures used include the conduct of all investigations by a central unit (36%) and the provision of training to people conducting investigations (29%). Some agencies also indicated that they use experienced external consultants and/or experienced staff.
Amajority of agencies (81%) use measures to ensure that sanctions imposed as a result of breaches of the Code are applied appropriately and consistently across the agency, and 10% of agencies are currently developing measures. A higher proportion of medium agencies uses such measures (92%) than small and large agencies (76% and 77% respectively).
The most commonly used measures to support an appropriate and consistent approach across the agency are that the delegation for applying sanctions is strictly limited (82%) and that a central HR and/or legal area is consulted when the sanction is decided (81%). A higher proportion of medium agencies (92%) have measures in place that strictly limit the delegation for applying the sanction than small and large agencies (76% and 82% respectively). Other measures used include decision making by a central unit responsible for all investigations (35%), guidelines setting out considerations to be taken into account when deciding sanctions (30%) and referral to a database of sanctions as part of the process for deciding sanctions (17%). A higher proportion of large agencies maintain a database of sanctions (41%) than small and medium agencies (seven per cent and 12% respectively).
Given the variability in the sanctions imposed amongst agencies, the issue of appropriate and consistent sanctions to apply to breaches of the Code of Conduct needs to be given more attention by many agencies.
Reviews of breaches of the Code of Conduct
The Public Service Regulations provide non-SES APS employees with a specific review right in relation to a determination that they breached the Code and/or the sanction imposed for a breach. Applications for review of this nature are required to be lodged directly with the Merit Protection Commissioner.
During 2002–03, the Merit Protection Commissioner received 43 requests for review, which was similar to the number received last year (44). It would appear that employees seek external review of decisions in about five per cent of cases.
Table 7.3: Reviews related to breaches of the Code of Conduct
| 1997–98 | 1998–99 | 1999–00 | 2000–01 | 2001–02 | 2002–03 | |
|---|---|---|---|---|---|---|
| No. received | 39 | 28 | 36 | 34 | 44 | 43 |
| No. reviewed | 25 | 20 | 19 | 33 | 26 | 29 |
Note: The data for 2001–02 includes one matter dealt with under the Public Employment (Consequential and Transitional) Amendment Act 1999. The data for years prior to this also include a number of applications dealt with under that Act or the Merit Protection (Australian Government Employees) Act 1984.
Source: APS Commission
During 2002–03, the Merit Protection Commissioner made a formal recommendation to an agency head in 29 cases. In 10 of those the Merit Protection Commissioner recommended that the decision of the agency head be confirmed. In five other cases, the Merit Protection Commissioner recommended that the agency head set aside the decision that a breach had occurred, and in a further 14 cases he recommended that either the sanction or breach, or both, be varied. No systemic issues emerged from an analysis of these cases.
1 The formal investigations into suspected breaches of the Code discussed in this section include those commenced as the result of a whistleblower report by an employee under s. 16 of the PS Act. Those investigations are also examined separately in the section on whistleblowing at the end of this chapter.