Fact sheet: Preliminary considerations

A formal misconduct process is one option available to agencies when behaviour does not meet expectations, but it will not be a suitable or proportionate response in every case.

As such, the preliminary consideration of a conduct concern should be broader than a decision about whether or not to take misconduct action: it should, instead, take the form of a diagnosis of the issue and the formulation of a tailored response that addresses the behaviour in context.

Understand the circumstances

Where an employee appears not to be meeting the standards expected of them, action needs to be taken to understand the nature and context of the behaviour to inform an effective response.

While a single incident or allegation may indicate improper behaviour by an individual, consideration should also be given to factors that might have led to or underpinned the behaviour, and which may need to be addressed to prevent recurrence, support workplace harmony, or maintain or restore public confidence in the APS.

These factors may be:

• Personal—an incident may indicate that an employee needs additional support, training, or supervision, or that issues outside work may be affecting their behaviour that need to be addressed either with agency support (such as referral to the Employee Assistance Program or use of flexible work arrangements), or, if this is not appropriate or possible, outside the work context.
• Interpersonal—an incident of poor behaviour by an individual may arise from a dispute between employees, and could indicate relationships that need to be repaired or managed with agency support or intervention.
• Institutional—an individual’s behaviour may indicate systems, practices, or norms that do not support employees to meet their behavioural obligations. In such cases, institutional or cultural change may be needed.

In some cases an employee’s behaviour may be so serious, or its impact so severe, that it would be appropriate for an agency to take misconduct action notwithstanding these additional factors.

In such cases, it may be appropriate to take other management or restorative action in addition to the misconduct process—for example, to mend workplace relationships or address systemic issues.

Assess the seriousness

As a general principle, the more serious the alleged behaviour or the greater its potential impact on public confidence in the APS, the more likely it is that misconduct action will be appropriate. In assessing this, agencies should consider how the behaviour would be viewed by a reasonable member of the community, having regard to factors such as:

• the seniority of the employee
• the role of the employee
• the nature and extent of the conduct.

This assessment does not require the behaviour actually to be known to the community, or to demonstrably have undermined confidence in the APS, at the time of the assessment. Rather, agencies should consider whether the behaviour is capable on its face of undermining trust in the APS, from the perspective of a reasonable observer.

Respond proportionately

Public confidence in the APS is maintained not only by the conduct of its employees, but also by their agencies responding reasonably and proportionately to behaviour that falls outside expected standards. Managing inappropriate behaviour promptly and proportionately also supports a safe, harmonious, and productive workplace.

Lower-risk matters

Where behaviour is less serious, or poses a lower risk to public confidence in the APS, management action is likely to be the more appropriate and proportionate response.

Higher-risk matters

In more serious cases, or those that pose a higher risk of undermining public confidence, misconduct action is more likely to be suitable. A formal misconduct investigation makes a clear statement about the seriousness with which the agency views the matter, and provides a transparent and fair process to an employee who may face adverse consequences of their behaviour.

In very serious, high-risk cases where any delay in acting raises a real risk that the safety of employees or clients may be compromised, or evidence destroyed, immediate consideration should be given to whether the employee will remain in their current role or location while the investigation takes place.

Impact on the workplace

Regardless of their assessment of the behaviour, agencies should also consider the effects of the behaviour, and of any misconduct process, on the workplace—for example, any impact on employee safety, trust, morale, relationships, or productivity—and take steps to manage these effectively.