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PERSONAL BEHAVIOUR

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MANAGING SUSPECTED BREACHES OF THE CODE OF CONDUCT

This section examines data on the number of suspected breaches of the Code of Conduct investigated by agencies and how agencies manage such suspected breaches.

LEVELS OF INVESTIGATION

The agency survey sought information from agencies about the number of employees that were the subject of formal investigations into suspected breaches of the Code of Conduct finalised during 2003—04. During 2003—04, 48 agencies finalised formal investigations into the behaviour of 1083 employees suspected of breaching the Code. Investigations were finalised in 21% of small agencies, 70% of medium agencies and all large agencies.

Data from 2002—03 is not directly comparable with 2003—04 data as this year’s agency survey asked questions about the number of employees the subject of formal investigations finalised in the reporting period, whereas last year’s survey asked about the number of formal investigations that were commenced during the period (one investigation could involve more than one employee). In addition, this year’s questions sought data for all formal investigations conducted under the agency’s formal procedures for handling suspected breaches of the Code of Conduct and specifically stated that this did not include initial investigations that did not proceed to formal misconduct procedures. By contrast, the 2003 survey defined ‘formal investigations’ as including all investigations into alleged Code of Conduct breaches.

While the data cannot be compared directly, it is interesting to note that the type of agency that undertook investigations during the reporting periods was relatively similar. For example, in 2002—03, 22% of small agencies, 62% of medium agencies, and 95% of large agencies commenced investigations.

Nevertheless, 2004 responses indicate that there remains a wide variation amongst agencies in the number of employees subject to investigations into suspected breaches of the Code of Conduct, which is not explained by agency size. Ten large agencies reported fewer than three employees subject to a finalised formal investigation for every 1000 employees (Finance, DEH, DEWR, CRS, ABS, DITR, BoM, Health, ASIC, and DAFF) and two agencies reported more than 20 employees investigated for every 1000 employees (CSA and DIMIA). Of the employees subject to a formal investigation that was finalised during 2003—04, 81% were employed in just five large agencies (Centrelink, Defence, CSA, ATO and DIMIA), and 29% of all such employees were employed by Centrelink (319). The wide variation in the rate of investigations reported as being carried out within agencies was one of the issues examined by the APS Commission evaluation into the management of the APS Code of Conduct. While the findings of the evaluation on this key point are presented in more detail later in this chapter, the evaluation noted several procedural differences between agencies.

  • Some agencies appear relatively quick to initiate formal investigations in relation to reported breaches of the Code of Conduct, whereas others will only do so after some form of often quite detailed informal investigation that indicates that a formal determination that the employee has breached the Code of Conduct is very likely
  • There are definitional differences between agencies about what they record as a finalised investigation. In one agency this might mean a case that has been fully investigated under procedures approved by the agency head and a determination made that the employee had (or had not) breached the Code of Conduct, while in another it might include cases that were handled less formally (in relation to this issue, the agency survey asked agencies to provide details only of employees subject to formal investigations under the agency’s formal Code of Conduct procedures).

NATURE OF REPORTED BREACHES

Table 6.3 sets out the frequency with which particular elements of the Code were suspected of being breached in the formal investigations finalised during 2003—04, and the number of agencies that reported having finalised at least one formal investigation that involved a suspected breach of that element of the Code.

Table 6.3: Elements of the Code of Conduct suspected of being breached in investigations finalised during 2003—04

Element of the Code Number of employees investigated for a suspected breach of this element Percentage of employees investigated found to have breached this element (%) Number of agencies with finalised investigations
An APS employee must:      
Use Commonwealth resources in a proper manner (s. 13(8)) 348 81% 27
At all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS (s. 13(11)) 334 81% 34
Comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction (s. 13(5)) 255 85% 20
Behave honestly and with integrity in the course of APS employment (s. 13(1)) 237 69% 29
When acting in the course of APS employment, comply with all applicable Australian laws (s. 13(4)) 221 58% 16
When acting in the course of APS employment, treat everyone with respect and courtesy, and without harassment (s. 13(3)) 216 70% 34
Act with care and diligence in the course of APS employment (s. 13(2)) 126 70% 19
Disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment (s. 13(7)) 95 68% 14
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 (s. 13(10)) 68 62% 16
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 (s. 13(13) and regulation 2.1–but see also the discussion of the Bennett case later in this chapter) 36 33% 5
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 (s. 13(9)) 27 63% 12
While on duty overseas, at all times behave in a way that upholds the good reputation of Australia (s. 13(12)) 2 0% 2
Maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff (s. 13(6)) 0 0% 0

Note: While agencies were asked for data on employees that were the subject of formal investigations, and were specifically asked not to include data on initial investigations that do not proceed to formal misconduct procedures, it is possible that some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations.

Source: Agency survey

Information supplied by agencies indicated that breaches of the Code covered a wide range of activities, including harassment and bullying, improper use of the internet or email and of other resources (e.g. vehicles), identity fraud, theft of computer or other equipment, and private behaviour of employees (e.g. at social functions outside working hours).

The element of the Code that was suspected of being breached by the largest number of employees overall was s. 13(8) of the PS Act–an APS employee must use Commonwealth resources in a proper manner. Investigations into possible breaches of s. 13(8) were finalised in three per cent of small agencies (one agency), 33% of medium agencies and 81% of large agencies.

The figures also show that the rate at which breaches are determined to have been made is fairly consistent across the various elements, with seven elements having breach findings of between 60% and 70%. However, it appears relatively difficult for agencies to establish that particular acts amount to breaches of Australian law (58%) and easier for them to establish that an act is contrary to a lawful and reasonable direction (85%), or has resulted in improper use of Commonwealth resources (81%), or to identify particular conduct as failing to uphold the APS’s integrity and good reputation or the Values (s. 13(11)–81%). It may also be the case that s. 13(11) of the Code has functioned to allow agencies broad flexibility to deal with inappropriate conduct that does not easily fit within other elements of the Code. Finally, while there was a low ‘determination rate’ for investigations concerning suspected breaches of regulation 2.1 concerning unauthorised disclosures, this may reflect the likelihood that some agencies abandoned investigations after the decision in the Bennett case.5 Some of these cases may subsequently have been pursued as breaches of other elements of the Code, consistent with the advice issued by the Commissioner following the Bennett case decision.

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 shows a wide range of results amongst agencies, varying between 0% at one extreme and 100% at the other. Large agencies with the lowest numbers of investigations per 1000 employees, tended to have lower rates of findings of ‘no breach’. This is a consistent with the finding of the evaluation, reported above, that some agencies delay commencing a formal investigation until a degree of preliminary investigation has been conducted and they have a high likelihood of determining that a breach has occurred, whereas other agencies routinely commence formal investigations as soon as they are notified of a suspected breach.

ENSURING CONSISTENCY IN INVESTIGATIONS

In response to the agency survey, 98% of agencies indicated that they have measures to ensure that the processes used to investigate suspected breaches of the Code are appropriate and consistent across the agency.

The most commonly used measure was the provision of guidance and support by the agency’s HR/employee relations area to people conducting investigations (92%). The next most commonly used measure was making detailed procedures available to people conducting investigations (67% of agencies reported that they had such material, while a further 7% of agencies said that material of this kind was being developed). Other measures used include the conduct of all investigations by a central unit (45%) and the provision of training to people conducting investigations (33%). Sixteen agencies (18%) also indicated that they used experienced external consultants and/or staff with specialist investigation/complaint handling experience.

Fifty-seven per cent of large agencies reported that they used a central unit to conduct all investigations. This was also true for 37% of medium agencies and 44% of small agencies. This represents an increase on last year when 50% of large agencies, 23% of medium agencies, and 37% of small agencies reported using a central unit for all investigations.

During 2003—04, 67% of large agencies reported that they provided training to people conducting investigations. The corresponding figures were 37% for medium agencies and 13% for small agencies. Again this represents an increase on last year (except for small agencies) when 55% of large agencies, 27% of medium agencies and 17% of small agencies respectively reported that they provided training.

The increase in use of a central unit and in providing specialist training is a positive development.

SANCTIONS IMPOSED

Table 6.4 shows the outcomes of formal investigations finalised during 2003—04 into suspected breaches of the Code of Conduct by agencies.

Table 6.4: Outcomes of finalised investigations into suspected breaches of the Code of Conduct

Outcome Number of employees affected Number of agencies that reported the outcome
Termination of employment 81 16
Reduction in classification 40 9
Reassignment of duties 28 11
Reduction in salary 80 13
Deduction from salary by way of a fine 217 14
Reprimand 245 28
Breach found but no sanction imposed 25 10
No breach found 340 24
Formal investigation discontinued because of resignation of employee under investigation 103 10
Formal investigation discontinued but employee counselled 21 6
Other 15 8

Note: While agencies were asked for data on employees that were the subject of formal investigations, and were specifically asked not to include data on initial investigations that did not proceed to formal misconduct procedures, it is possible that some agencies may have provided information on elements of the Code that were suspected of being breached in both formal and informal investigations.

Source: Agency survey

The employment of 81 employees from 16 agencies was terminated as a consequence of misconduct during 2003—04. One small agency terminated the employment of an employee; five medium agencies terminated the employment of at least one employee each; and the remaining terminations occurred in 10 large agencies with Centrelink, ATO, Defence and CSA accounting for 80% of terminations. With one exception, all reductions in classification occurred in eight large agencies only, with 73% of reductions occurring in ATO and Centrelink. Thirteen agencies reduced the salary of 80 employees. One large agency, Centrelink, accounted for 49% of salary reductions.

Last year’s State of the Service report noted that there was variation between large agencies in the extent of their use of ‘high impact’ sanctions.6 The data from this year’s survey, calculated as a proportion of the total number of sanctions imposed by each of the 21 large agencies, shows that the imposition of the ‘high impact’ sanctions varied between 0% and 49% amongst large agencies.7 ‘High impact’ sanctions were not used at all in 13 large agencies; were between 10% and one third of total sanctions in six large agencies; and were greater than a third of total sanctions in four large agencies. Thus, the variation noted and reported on in the previous year’s results seems to have been substantially replicated this year.

It is also relevant to note that in a significant proportion of cases (10%), the employee being investigated resigned prior to the completion of the process.

This variation between agencies was one of the issues considered by the APS Commission’s evaluation of the management of suspected breaches of the Code of Conduct. While the findings of that evaluation are set out in more detail later in this chapter, the evaluation did suggest that the variations seen in this kind of material could partly be explained by the different emphases that particular agencies place on certain types of misconduct that pose particular risks to their business outcomes. However, as discussed later, the evaluation did find evidence of apparent inconsistency in the level of sanctions imposed for certain acts of misconduct within and amongst some agencies, even when other relevant factors were accounted for.

ENSURING CONSISTENCY OF SANCTIONS

Almost all agencies (98%) reported that they use measures to ensure that sanctions imposed as a result of any determined breaches of the Code are applied appropriately and consistently across the agency.

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 (94%) and that a central HR and/or legal area is consulted when the sanction is decided (91%). Small agencies (90%) are slightly less likely than medium (100%) and large agencies (95%) to have measures in place that strictly limit the delegation for applying the sanction. Other measures used include decision-making by a central unit responsible for all investigations (44%), guidelines setting out considerations to be taken into account when deciding sanctions (44%) and referral to a database of sanctions as part of the process for deciding sanctions (21%).

A higher proportion of large agencies maintain a database of sanctions (38%, with a further 19% reporting a database as being developed) than small and medium agencies (15% of which maintain a database).

These figures represent a positive change on the outcomes reported in 2002—03, in which 89% of agencies reported using measures to ensure that sanctions are applied appropriately and consistently across the agency.

Evaluation–Managing suspected breaches of the Code of Conduct

In February 2004, six agencies agreed to participate in the evaluation of how agencies are managing suspected breaches of the Code of Conduct–DFAT, Centrelink, Finance, CSA, ATO and Health.

The objectives and methodology of the evaluation are outlined in Appendix 3.

A separate good practice guide drawing on the findings of the evaluation that will give practical guidance to agencies will be published in 2005. The key overall findings are presented below.

Key overall findings

Agencies use the flexibility under the PS Act and deal with suspected misconduct using a variety of models both to investigate whether there has been a breach of the Code of Conduct and to impose any consequent sanction, and there is no one ‘best model’ that is suitable for all agencies. The model adopted by each agency appears to depend on a range of factors including geographical distribution of staff, the nature of the agency’s business, how the business is organised, the average number of breaches in a year, the nature of the most common types of breaches, the agency’s present workplace culture and the agency’s desired workplace culture.

All six agencies had procedures to manage suspected breaches of the Code of Conduct as required by s. 15 of the PS Act. Most agencies’ procedures fully met the requirements of the regulatory framework–some required minor changes. Four of the agencies had detailed and useful guidance material linked to their procedures.

All six agencies also had whistleblower procedures as required under PS regulation 2.4. Generally, however, these procedures were not of the same quality, with most requiring some change to fully meet the requirements of the regulatory framework.

All six agencies took misconduct seriously. Some agencies have recently improved their processes and quality assurance methods and some are currently planning improvements. Others have had good quality processes and quality assurance methods in place for some time.

The hypotheses for the large differences amongst agencies in the types of sanctions imposed and the number of investigations per 1000 employees identified in last year’s report were only partly confirmed. These hypotheses were that variations reflect:

  1. The nature of the work of different organisations and the varying importance placed on particular APS Values and elements of the Code of Conduct.
  2. That some agencies may be less rigorous and systematic in their processes than they should be.
  3. That some agencies take a stronger line in relation to sanctions, or that other agencies are relatively lenient.

The evaluation found that the first and last of these hypotheses were borne out but also found other explanatory factors. In relation to the second hypothesis, rather than agencies being simply less rigorous and systematic in their processes than they should be, the evaluation found that there were variations in approaches among (and sometimes within) agencies in dealing with suspected misconduct, particularly in dealing with more minor misconduct.

In some agencies, for example, less serious cases of harassment or bullying were generally dealt with through the performance management system while in others such misconduct was generally dealt with through the misconduct procedures. Other agencies left the handling of more minor misconduct and/or workplace behaviour type of misconduct essentially to the discretion of individual managers. In this latter group of agencies in particular (but not exclusively) the view was expressed by various people that areas within the agency and/or individual managers took different approaches to the same type of misconduct, such as cases involving accessing offensive material on the internet and harassment and bullying. Some treated such issues as relatively minor and/or better dealt with by processes other than misconduct procedures while others were much more stringent. A clear conclusion from the evaluation is that agencies should provide greater guidance to managers and supervisors about what constitutes ‘minor’ misconduct and what procedures/processes should be used to deal with various types and levels of misconduct.

Another factor contributing to the variation among agencies was identified by the audit of case files. In addition to inconsistencies within large agencies, some agencies appeared to be relatively more lenient than others for similar types of misconduct in relation to the sanction imposed. Some variation between agencies is reasonable because of the varying nature of agencies’ business–a particular type of misconduct may pose a greater or lesser risk to the effective administration of different agencies. However, some types of breaches of the Code would appear to raise similar risks for all APS agencies, for example, use of IT equipment to view, store or distribute offensive material, or bullying and harassment of colleagues.

It would be desirable to achieve more consistent sanctions within each agency for broadly similar breaches (allowing, however, enough flexibility to take into account the particular circumstances of each case, ensuring a simplistic ‘formula’ approach is not adopted). Large agencies with significant numbers of breaches, should particularly review their mechanisms to improve consistency in sanction setting.

The desirability of applying more consistent sanctions across APS agencies for particular types of breaches is a more difficult issue given the number of cases involved, the variety of business outcomes of APS agencies and the need to avoid a simplistic ‘formula’ approach. The APS Commission is looking to issue a regular publication of some kind of case-study type guidance on the handling of cases including sanctions. The good practice guide will also include a detailed discussion of the factors that should be taken into account in determining an appropriate sanction.

Another factor contributing to the observed variation among agencies is that the statistics provided by agencies for the State of the Service report are not fully comparable. This is caused by a variety of factors some of which are outlined elsewhere in this chapter.

None of the agencies identified factors specific to the PS Act or Regulations that represent impediments to them in effectively managing suspected breaches.

Other specific findings

  1. It was observable that those agencies that made large investments in general awareness raising on the importance of the Values and Code of Conduct performed better in relation both to staff awareness of the Code of Conduct and willingness to report misconduct compared to agencies with lower levels of investment.
  2. In some agencies it was not uncommon for the important roles of investigating a suspected breach and then making a determination about whether the breach occurred to be given to employees who:
    • were at the EL1 or EL2 classification level
    • had received no specific relevant training
    • had little or no relevant (i.e. investigative) experience
    • were expected to fulfil their normal job requirements at the same time.

    The evaluation found a relationship between the skill and experience of the investigator (coupled with the degree and quality of assistance available to him or her), and the quality of the process, including the level of adherence to procedural fairness as evidenced by the case files. A clear conclusion from the evaluation is that employees who are given the role of investigating and determining a suspected breach should also be given the resources and training required to fulfil the role to a high quality.

  3. While most cases analysed in the evaluation followed proper processes, in a minority of cases some quality issues were raised.
    • The quality of record keeping in a number of cases was poor. Key documents such as statements by parties, copies of the notification letter, and even copies of reports and decisions were missing from files.
    • Statements of reasons for determinations and sanctions were sometimes cursory and limited to a discussion of whether a particular act had occurred. In some cases, there was no material on file that explained the decision-maker’s reasons for concluding that a particular act amounted to a breach of a specific element of the Code or explained why one sanction was preferred over other alternatives.
  4. In some cases there appeared to be misunderstandings about delegations and the precise roles of those given the investigative and determination tasks, particularly in relation to their level of independence from the person exercising the sanctioning delegation. It needs to be clear in any procedures established by the agency head and any related guidance material that the person appointed to make a determination of breach of the Code is to be independent and unbiased.

 

5 The Bennett case is discussed in more detail later in this chapter.

6 ‘High impact’ sanctions are those that have the greatest impact on employees: termination of employment, reduction in classification and reduction in salary.

7 Three large agencies did not impose any sanctions.

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