Chapter 10: Misconduct action in unusual circumstances

10.1. A misconduct process may sometimes intersect with other considerations or processes, either within or outside the workplace. This chapter deals with the impact on misconduct processes of criminal matters, employee movement and separation, and probation.

Misconduct action and criminal matters

10.2. Agencies may become aware of conduct by an employee that could be in contravention of the criminal law, or may become aware of criminal proceedings or convictions relating either to an employee’s behaviour in the workplace or to their private actions. In these cases, agencies can face difficult decisions—including whether to take misconduct action, and how any such action may be affected by criminal proceedings that are in train.

10.3. If an agency becomes aware of possible criminal behaviour by an employee, consideration should be given to:

• reporting the matter to the appropriate law enforcement or investigative agency
• whether to commence a misconduct investigation, or, if the suspected criminal behaviour has come to light in the course of a misconduct investigation, whether to continue or modify the investigation
• whether it is appropriate or necessary for the agency to conduct a specialised internal investigation (for example, a fraud investigation) if it is authorised to do so.

10.4. Agencies may also need to consider assigning different duties or suspending an employee (see ‘Changes in role, assigning different duties, and suspension’).

Referring the matter to law enforcement or investigative agency

10.5. Agencies should have clear processes for receiving and dealing with reports of conduct by their employees that may contravene the criminal law, including self-reporting by employees, having regard to relevant reporting obligations.

10.6. If an agency or an employee wishes to report a suspected contravention of the criminal law directly to a law enforcement agency, they will need to consider which agency is appropriate. While many crimes against the Commonwealth are dealt with by the Australian Federal Police (AFP), there may be cases where State or Territory law applies and suspected contraventions may need to be reported to other law enforcement agencies.

• The AFP has primary responsibility for investigating serious or complex crimes, including fraud, against the Commonwealth. Generally, agencies should refer allegations of serious crime against the Commonwealth to the AFP, which will determine whether it will investigate the matter. The AFP may recommend a joint investigation with the agency or other law enforcement bodies.
• Where there is doubt about the proper avenue for reporting suspected contraventions of the criminal law, agencies can consult the AFP or State or Territory police, or seek legal advice. The AFP has published advice on its website about the types of criminal incidents that can be reported to the AFP or to State or Territory police.

Obligations to report

10.7. Agencies are required under the PID Act to establish procedures for dealing with disclosures made under that Act. It is open to employees who become aware of a suspected contravention of the criminal law by another employee to make a public interest disclosure consistent with the procedures established by their agency. Should an investigator, in the course of an investigation under the PID Act, suspect that the disclosure includes an offence against a law of the Commonwealth that may be punishable by imprisonment for a period of at least two years, the investigator must notify a member of an Australian police force of that suspected offence (s.56 of the PID Act).

10.8. In addition, some State or Territory jurisdictions may have their own obligations regarding matters that must be reported to police. If in doubt, agencies are encouraged to seek advice from the relevant law enforcement agency.

10.9. Agencies also have obligations relating to receiving and dealing with reports of suspected contraventions of the criminal law under the Australian Government’s Protective Security Policy Framework, administered by the Attorney-General’s Department. Some agencies may also have obligations to refer certain corruption matters to the Australian Commission for Law Enforcement Integrity (ACLEI).

Taking misconduct action

10.10. Where an employee’s behaviour may be both a breach of the Code and a criminal offence, it is open to an agency to start a misconduct process. A misconduct process may precede, be concurrent with, or be subsequent to a criminal investigation, or may be an alternative to a criminal investigation for allegations about matters that on their face may appear to contravene the criminal law but are relatively minor (for example, alleged stealing from store cupboards). However, if it becomes evident during the misconduct process that the matter is of a more serious nature, the agency may refer it to the relevant law enforcement body.

10.11. Where an agency becomes aware that the police are investigating a suspected contravention of the criminal law, or a prosecution is being conducted by a State or Territory prosecution authority or the Commonwealth Director of Public Prosecutions (CDPP), advice should be sought from the police or the prosecuting authority before starting, or continuing with, a misconduct process. Agencies would generally not proceed with misconduct action if the police, another investigative body, or the prosecuting authority has advised them that misconduct action may prejudice criminal proceedings or investigations. If there is a risk of prejudicing the criminal proceedings or investigation, agencies may:

• put the employee on notice that action under the agency’s s.15(3) procedures is being considered, but not start that action
• start action under the agency’s s.15(3) procedures, but then put that action on hold while the criminal investigation is undertaken
• decide whether to suspend the employee for a period of time until circumstances are clearer or criminal proceedings are finalised
• liaise with the investigative body on the appropriate collection and security of evidence.

Interaction between criminal matters and the Code

10.12. A finding by a court in relation to a criminal prosecution is not determinative of whether an employee has breached the Code.

• Where an employee has been convicted of a criminal offence, they should not by virtue of that alone be taken to have breached the Code.
• Likewise, it is open to agencies to take misconduct action in relation to conduct found by a court not to have contravened the criminal law.

10.13. Each case will need to be considered on its merits, and a decision made as to whether an investigation under an agency’s s.15(3) procedures is warranted.

10.14. Where an investigation is undertaken, a breach decision-maker cannot simply adopt findings of fact made by courts—decision-makers have their own duty to establish the facts that would inform a breach determination, and, consistent with the requirements of procedural fairness, must provide the person under investigation with an opportunity to comment on these before making a decision. As well, findings of fact in a misconduct investigation require a different standard of proof—they are made on the balance of probabilities, rather than the criminal standard of ‘beyond reasonable doubt’.

10.15. When deciding whether to inquire into an employee’s behaviour as a potential breach of the Code where they are subject to a criminal charge or conviction, agencies should consider the following factors:

• Is there a relationship between the act and the employee’s employment? What is the impact, if any, on the workplace?
  APS employees are also citizens, and, like all other citizens, are entitled to a private life. Some criminal acts committed in a private capacity will not warrant consideration under an agency’s s.15(3) procedures where they are not relevant to, or have no impact on, the employee’s employment or workplace. For example, a criminal conviction for drink driving outside the workplace, which does not result in a custodial sentence and where the employee is not required to drive a car as part of their duties, may not have sufficient relationship with the employee’s employment to warrant misconduct action.
• If the employee has been convicted, has the conviction affected their ability to carry out their duties or role?
  Criminal convictions may prevent the employee from performing their duties if the conviction results in a custodial sentence, or affects their suitability to hold a security clearance. Agencies must advise the relevant security vetting agency of criminal charges or convictions by employees with a security clearance. The vetting agency will determine how that information will affect the employee’s clearance. The employing agency will need to assess the impact of a change to, or loss of, security clearance on the employee’s ability to carry out their duties.
• Have the employee’s actions brought the employee’s agency or the APS into disrepute?
  Criminal charges or convictions may have different impact in different agencies depending on the nature of the act and the role of the agency. For example, possession of an illicit drug may be viewed particularly seriously, and have a stronger relationship to the workplace and its reputation, where the employee is employed by a law enforcement or health regulatory agency.

Undertaking a specialised internal investigation

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10.16. This option may be appropriate where, for example, the AFP has decided not to investigate the matter but the agency considers it serious enough to investigate, and has the appropriate authority and expertise to do so.

• In cases of suspected fraud or other criminal behaviour, the person conducting the investigation must follow the agency’s fraud control policy and procedures. These must be consistent with the PGPA Act and the Commonwealth Fraud Control Framework administered by the Attorney-General’s Department.
• Consistent with the Commonwealth Fraud Control Policy, agency fraud investigations must meet the requirements set out in the Australian Government Investigation Standards administered by the AFP. This includes competency standards for people undertaking fraud investigations.

10.17. An internal investigation may result in referral of the findings to the CDPP for consideration of prosecution—see the Prosecution Policy of the Commonwealth. At the start of an internal investigation, if it is apparent that a finding may be referred to the CDPP care must be taken that the collection of evidence complies with rules of evidence to ensure admissibility of evidence in court.

Privacy and handling of sensitive information relating to criminal convictions

10.18. Agencies have responsibilities under the Privacy Act in respect of employees’ personal information, including information about criminal records. Under the Privacy Act, a person’s criminal record is treated as ‘sensitive information’ and attracts additional protections.

10.19. Criminal records may also be covered by the Commonwealth Spent Convictions Scheme under the Crimes Act 1914, or by a state or territory spent conviction scheme. The Commonwealth Spent Convictions Scheme allows an individual not to disclose a conviction for a less serious offence after a period of good behaviour, and prohibits unauthorised use and disclosure of information about the conviction.

10.20. The Australian Human Rights Commission (AHRC) has also published guidelines for the prevention of discrimination in employment on the basis of criminal record, and provides information on spent conviction laws.

10.21. Agencies are advised to refer to guidance material produced by the Office of the Australian Information Commissioner and the AHRC when dealing with information relating to criminal convictions.

Employee movement or separation

Employee moves to another agency

10.22. An agency may become aware that an employee has received a job offer from another APS agency after the employee has been notified, in accordance with the agency’s s.15(3) procedures, that they are alleged to have breached the Code.

10.23. In these circumstances, any move between APS agencies under s.26 of the PS Act will generally be deferred by the operation of ss.46 and 47 of the Commissioner’s Directions. Under these provisions, the movement, including on promotion, does not take effect until the misconduct action is resolved, unless the head of the original agency and the head of the new agency (the ‘gaining agency’) agree otherwise. The misconduct action is resolved by either:

• a determination being made under the original agency’s s.15(3) procedures about the suspected misconduct, or
• a decision by the original agency that a determination is not necessary.

10.24. Where an employee suspected of having breached the Code moves, with the agreement of the agency heads, before the misconduct action is resolved, the gaining agency may initiate an investigation in accordance with its s.15(3) procedures. When an employee moves to a different agency, the procedures of the original agency no longer apply to them, and the gaining agency needs to start its own investigation into the matter under its s.15(3) procedures.

10.25. It would be open to the head of the gaining agency to use information and any assessment conducted by the original agency in undertaking a misconduct investigation. Regulation 9.2 of the PS Regulations allows the original agency to disclose information to the gaining agency where it is relevant to an agency head’s employer powers, including a misconduct investigation in the gaining agency.

10.26. Where an employee moves after a finding of a breach, but before the imposition of a sanction, it is not necessary for a fresh investigation and breach determination to be carried out under the gaining agency’s s.15(3) procedures, unless the procedures require otherwise.

10.27. A sanction delegate in the gaining agency can impose a sanction, subject to the gaining agency’s s.15(3) procedures, on the basis of the original agency’s finding of breach. An agency head’s power under s.15(1) of the PS Act to impose a sanction extends not only to employees found under that agency’s s.15(3) procedures to have breached the Code, but also to employees found to have breached the Code under another agency’s s.15(3) procedures. Agency s.15(3) procedures should avoid seeking to limit this power.

Machinery of government changes

10.28. Section 72 of the PS Act deals with Machinery of Government (MoG) changes. When an employee under investigation is moved from their agency to another under s.72 of the PS Act, it is open to the gaining agency to decide whether it wishes to continue action to determine whether the employee breached the Code in the previous agency. This might be influenced by, for example, the seriousness of the alleged misconduct, its relevance to the business of the gaining agency, or the seniority of the employee.

10.29. If the gaining agency decides to conduct an investigation, the investigation must be conducted under the gaining agency’s s.15(3) procedures.

10.30. The Commissioner may determine special arrangements in respect of an employee moved under MoG changes if certain circumstances exist concerning the employee’s employment. Section 72(5A) of the PS Act and regulation 8.3 of the
PS Regulations set out these circumstances. They include, among other things, circumstances where:

• a misconduct investigation is underway in the former agency
• a sanction is imposed in relation to a misconduct finding, including a sanction that may have continuing effect
• an employee is suspended in their former agency in response to an alleged breach of the Code.

10.31. It is important that agencies consider this when a MoG change is under discussion. Agencies can seek further advice from the Commission if a determination of this type is considered appropriate.

Employee separates from the APS (‘former employee’)

10.32. Where a person under investigation resigns from APS employment, the agency may continue the investigation, and determine whether there has been a breach of the Code, if it decides this is justified in the circumstances.

10.33. An agency may also commence a misconduct investigation in relation to a former employee’s behaviour if that behaviour took place when the person was still an APS employee. Although a former employee can be found to have breached the Code, an agency head has no power to impose a sanction on a former employee.

10.34. It is only possible to take misconduct action in relation to a former employee who left the APS on or after 1 July 2013.

Considerations

10.35. In deciding whether to start an investigation after an employee has left the APS, or to continue an investigation after an employee has resigned, the following matters could be considered:

• Whether it would be possible to give the former employee a fair hearing, including a reasonable opportunity to answer the case against them
  • Factors to consider include the passage of time since the incident(s) and any constraints on the former employee accessing records in order to be able to respond effectively to the allegations.
  • Agencies may need to consider whether to provide a former employee with supervised access to agency premises or resources in order to identify relevant records.
  • Where an agency has failed to contact a former employee to inform them of the allegations, and is satisfied that reasonable attempts have been made to do so, the agency may continue the investigation. What is considered ‘reasonable attempts’ to contact the former employee will depend on the circumstances, but may include contact attempts by telephone, email, registered mail, or publicly listed individual workplace contact information.
  • The risks of not undertaking an investigation, such as damage to the reputation of the agency or APS, or the message that not pursuing the matter would send to other employees or the community about the seriousness with which the agency responds to conduct or integrity concerns
  • The costs associated with any investigation
  • The availability of evidence and the ability to collect it.

10.36. As well, once a person is no longer an APS employee, they are under no obligation to cooperate with an investigation, and an agency head has no power to direct a former employee to provide information or attend interviews, or to maintain confidentiality. That said, a former employee may be motivated to cooperate in an investigation because of the impact an adverse outcome could have on their reputation or employability.

10.37. Agencies should advise former employees determined to have breached the Code of their right to seek review by the MPC of that determination.

10.38. Whether or not an agency conducts an investigation under its s.15(3) procedures, it should also consider whether additional measures are needed to restore public confidence or workplace harmony—for example, reviewing systems, or rebuilding relationships to address matters that may persist even after the person has left the APS.

Employees on probation

10.39. Employees subject to probation are required to abide by the Code in the same way as other employees. Probationers who fail to adhere to behavioural and performance standards may have failed to meet a condition of their probation. In these circumstances, there may be grounds for termination of employment under s.29(3)(f) of the PS Act.

10.40. Agencies are advised to bring to a probationer’s attention on their engagement their obligations to uphold the Values and Employment Principles, and to comply with the Code, as essential elements underpinning their employment in the APS.

10.41. Where it is suspected that a probationer may have breached the Code, it is open to an agency to take misconduct action under its s.15(3) procedures. The agency head may impose a sanction on a probationer found to have breached the Code.

10.42. If, as a result of an investigation, it is established that there has been a serious breach of the Code, the agency head can terminate the engagement immediately, without waiting for the period of probation to run its normal course. In establishing procedures under s.15(3) of the PS Act, agencies may need to consider whether they should include different provisions to apply to employees who are still serving a period of probation.