Chapter 7: Taking misconduct action: initial considerations

Contents

7.1. Once an agency has decided to commence a misconduct process, certain matters need to be considered at the outset. These may include deciding whether the person under investigation should remain in their role while the misconduct action takes place; deciding on the scope of the investigation; drafting the allegations; preparing an investigation plan; and notifying the person under investigation that a misconduct process has commenced.

Changes in role, assigning different duties, and suspension

7.2. Agencies should consider whether it is appropriate for the person under investigation to remain in their current role, or in the workplace, while the misconduct process takes place.

7.3. Decision-makers in these matters should not prejudge, or be seen to prejudge, the outcome of the misconduct action. At this stage, the relevant measures are precautionary, aimed at protecting the interests and reputation of the agency, the public interest, and the interests of other employees, including the complainant or witnesses. In some cases, these decisions will also be made in the interests of the person under investigation. They are not to be used as a punitive tactic, or as a
de facto sanction.

7.4. Decisions about these measures may be made at the same time as a decision to start misconduct action, or at any stage during the misconduct process if there are further developments—for example, concerns raised by other employees, repetition of the behaviour, or new allegations coming to light during the investigation.

7.5. Decisions about the role or presence in the workplace of the person under investigation during the misconduct process should have regard to the nature and severity of the specific risks, and should be proportionate to these risks. As appropriate, consideration may be given to options such as the following while misconduct action is on foot:

directing the person under investigation not to contact a specific person or people
directing the person under investigation not to discuss the matter openly, to maintain the confidentiality and integrity of the process
limiting the person’s access to particular data, files, or electronic systems or applications

limiting direct or unsupervised contact with clients or stakeholders
removing supervisory responsibilities
assigning different duties to the person under investigation, including in a different location.

7.6. If it is not possible to mitigate the risks in a given case through measures that would enable the person under investigation to remain at work, agencies may consider suspending the person from duty.

7.7. Agencies should ensure that decision-makers in these matters have the authority under the PS Act or PS Regulations to make decisions to assign duties or suspend an employee. It is preferable for these decision-makers not to be involved in investigating the alleged breach of the Code or making a related determination.

Assigning different duties

7.8. An agency may decide that it is appropriate to assign different duties to the person under investigation, either for a temporary period or on an ongoing basis. The power to do so is the general assignment of duties power in s.25 of the PS Act.

7.9. In order to ensure that all relevant facts are considered before making a decision to assign different duties, agencies should notify the person under investigation of the proposal and seek their views. Sometimes urgent action may be required that will not allow for that opportunity. In such cases, it would be appropriate to invite the person to comment after the decision has been made. Depending on their response, the agency has the flexibility to consider alternative arrangements, including suspension.

7.10. Employees who are assigned to different duties are not entitled to seek review of the decision under s.33 of the PS Act unless it involves relocation to another place, or assignment of duties that the employee cannot reasonably be expected to perform.

Suspension

7.11. Where other options cannot mitigate the risks posed by the person under investigation remaining in the workplace, it is open to the agency to consider suspending them from duty.

7.12. The starting point for considering whether to suspend an employee is whether the agency head (or delegate) believes on reasonable grounds that the employee may have breached the Code, and that suspension is in the public interest or the agency’s interest.

7.13. It may be in the public or the agency’s interest to suspend an employee from duty where their continued presence in the workplace poses risks to, for example:

the safety and wellbeing of other employees or members of the public, including agency clients
the integrity of data held by the agency, including data about members of the public
the integrity of Commonwealth resources, including the public revenue—for example, where the allegations relate to fraud or misappropriation
public confidence in the agency or the APS as a whole, including where the allegations may undermine public confidence in the agency’s capacity to perform its functions.

7.14. Agencies may also wish to consider suspension where the alleged misconduct is serious—especially if there is a risk that the conduct may be repeated—or where there is a real risk of the investigation being compromised by the presence in the workplace of the person under investigation, and the risk cannot be mitigated in other ways.

7.15. Advice to the person under investigation about a suspension decision should make clear that the decision is not a prejudgement of whether they have breached the Code.

Legislative framework for suspension

7.16. Section 28 of the PS Act and regulation 3.10 of the PS Regulations set out the legislative basis for suspending an employee who is alleged to have breached the Code.

An employee may be suspended, with or without remuneration, where the agency head believes, on reasonable grounds, that the employee may have breached the Code, and where the suspension is in the public interest, or the agency’s interest (subregulations 3.10(1), (2), and (3) of the PS Regulations)

7.17. The term ‘remuneration’ is not defined by the PS Act or PS Regulations, but, in accordance with its ordinary meaning, 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
other salary-related payments, including those associated with the performance of extra duties, such as overtime, but excluding overtime meal allowance, and 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 ongoing nature, including, for example, cost reimbursement allowances such as a temporary accommodation allowance.

7.18. Factors to consider in deciding whether to suspend with or without remuneration may include:

the seriousness of the alleged misconduct—suspension without remuneration would usually be appropriate in cases where the sanction imposed might be termination of employment if the alleged misconduct is determined to be a breach of the Code
the agency’s obligations under s.15 of the PGPA Act with respect to the proper use and management of public resources. In the circumstances of the case, decision-makers should consider whether it is appropriate for the suspended employee to be remunerated if they are not working
the estimated duration of the misconduct action
the likely financial hardship, if any, for the employee:
- The decision-maker can balance the seriousness of the alleged breach against the severity of the financial impact of the suspension. In some circumstances, the hardship imposed may be disproportionate to the alleged misconduct. In others, the alleged misconduct may be so serious that it outweighs claims of hardship.
- While the onus is on the person under investigation to substantiate a claim of hardship by providing persuasive evidence to support their case, a decision-maker should give them reasonable opportunity to provide information about the nature of the hardship. For example, where the person claims that their bank would take possession of their house, the decision-maker might seek a statement to this effect from the bank, and/or a signed statutory declaration from the person under investigation.

If the suspension is to be without remuneration, the period without remuneration is to be:

not more than 30 days, or
if exceptional circumstances apply—a longer period (subregulation 3.10(3))

7.19. ‘Exceptional circumstances’ are not defined in the legislation, 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 the person under investigation has been charged with a criminal offence and is waiting to have the charge heard and determined
where the person under investigation has appealed against a criminal conviction and is waiting to have the appeal heard.

A suspension, with or without remuneration, must be reviewed at reasonable intervals (subregulation 3.10(4))

7.20. A review of suspension under regulation 3.10 is not a review of the original suspension decision. It is a fresh decision as to whether the person under investigation should remain suspended, having regard to the risks posed by the person’s presence in the workplace and whether suspension remains the most effective way to mitigate these risks.

7.21. Agency guidance to employees should draw a clear distinction between the right to have a suspension from duty reviewed at regular intervals (subregulation 3.10(4)) and the review of action provisions in s.33 of the PS Act.

Review of suspension under subregulation 3.10(4) has a prospective effect. It examines whether a suspension from duty is to continue from the time of the review decision. It does not involve a reconsideration of the original decision to suspend the person under investigation.
By contrast, a review of action under s.33 of the PS Act involves re-examination of the original decision. It is good practice to advise the person under investigation of their right to seek a review, under s.33 of the PS Act, of the decision to suspend.

Suspension must end immediately if 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 (subregulation 3.10(5))

Suspension must end as soon as any sanction is imposed for the relevant breach of the Code (subregulation 3.10(6))

In exercising suspension powers, the agency head must have due regard to procedural fairness, unless they believe, on reasonable grounds, that it would not be appropriate to do so in the particular circumstances (subregulation 3.10(7))

7.22. Cases where the decision-maker believes that it is not appropriate to have regard to procedural fairness are likely to be unusual. It may be considered where there is a need to act urgently due to safety concerns or a risk that evidence will be destroyed, or where there is some other overriding public interest. In most cases, however, decision-makers will be able to have due regard to procedural fairness.

The usual practice is to:

inform the person under investigation, in writing, of the agency’s preliminary intention to suspend them, and the reasons for this proposal, and
give the person a reasonable opportunity to respond before any decision to suspend is taken.

7.23. An employee who is suspended without first being given an opportunity to comment should be advised of the reasons for the suspension decision, and for proceeding without seeking their comments, and invited to comment. On receipt of the employee’s comments, a review of the decision to suspend can promptly occur.

Additional considerations

7.24. It is advisable for agencies to inform the person on suspension about the agency’s policies regarding access to the workplace, entitlement to apply for jobs in the agency or other agencies, and attendance at training courses previously booked or approved. Further considerations are set out below.

Keeping suspension delegate informed

7.25. The requirements in the regulations concerning review and revocation of suspension decisions mean that the suspension decision-maker must be informed of progress in the misconduct investigation. They need this information to ensure that they can properly review, at reasonable intervals, the decision to suspend the person under investigation, or to revoke the suspension in the circumstances provided for in subregulations 3.10(5) and 3.10(6).

Accessing leave during suspension

7.26. An employee who is suspended without remuneration may be able to access paid leave credits during suspension. This will depend on what is reasonable in the circumstances, and is subject to the provisions of the relevant industrial instrument setting out terms and conditions of employment, as well as agency policies. Some agencies allow suspended employees to access accrued annual or long service leave credits, but not personal leave. The rationale for drawing this distinction is that personal leave is generally only available where an employee is prevented by illness or caring responsibilities from attending for duty.

Outside employment during suspension

7.27. An employee who is suspended may want to seek outside employment while the suspension is in place. Agency policies and procedures on outside employment would continue to apply, including consideration of whether any outside employment might create a real or apparent conflict of interest with the employee’s APS employment. A suspension with or without remuneration does not affect the employee’s obligation to comply with agency policies, lawful and reasonable directions, or the Code overall.

Recognition of service during suspension

7.28. Whether the period of suspension from duty counts as ‘service’ for purposes such as annual leave, long service leave, or maternity leave is dependent on the terms of the relevant legislation and any industrial instrument or contract that confers the entitlement to leave. For example:

Generally, it is considered that suspension from duty does not constitute a break in an employee’s continuous employment as defined in s.11(1) of the Long Service Leave (Commonwealth Employees) Act 1976 (LSL Act). Periods of suspension, with or without remuneration, would not affect an employee’s long service leave entitlements in the sense of breaking continuity of service.
However, suspension without remuneration may not count as service for the purposes of the LSL Act, which means an employee suspended without remuneration generally would not accrue long service leave during the suspension. Suspension without remuneration would be considered leave without pay (LWOP) under the LSL Act, and would not count as service unless the agency head determines it should do so. Such decisions should be made by agency heads on a case-by-case basis, having regard to all the circumstances.
Suspension without remuneration may also be regarded as LWOP for the purpose of the Maternity Leave (Commonwealth Employees) Act 1973
(ML Act). The ML Act requires a qualifying period of 12 months’ continuous service before an employee is eligible for paid maternity leave. LWOP during the qualifying period does not break continuity of employment for this purpose.
A period of suspension with or without remuneration would generally count as service for annual leave purposes if the employee’s conditions of employment do not exclude the accrual of annual leave during periods of suspension.

Repayment if no breach found

7.29. An agency may consider whether an employee who was suspended without remuneration and subsequently found not to have breached the Code can seek repayment of any salary foregone, or leave credits taken, during the period of suspension. There is no express provision in the PS Act or PS Regulations allowing for salary to be repaid in the event that an employee is found not to have breached the Code. Agencies should seek legal advice if they are considering repayment in these circumstances.

Preparing for an investigation

7.30. Preparing for a misconduct investigation includes scoping and planning, formulating allegations, and notifying an employee or former employee that they are the subject of a misconduct investigation.

7.31. Fundamentally, the investigative process is a fact-finding exercise. Its aim is to establish what occurred, so that a fair and informed decision can be made, on the basis of the facts, about whether a person’s behaviour has breached the Code. At the investigation stage, the question to be answered is ‘what happened?’, rather than ‘was there a breach?’

7.32. Establishing facts in a misconduct investigation is distinct from any preliminary fact-finding process, the purpose of which is to inform a proportionate decision about how a conduct matter should be managed.

More information is in Chapter 4.

Deciding the scope of the investigation

7.33. An agency may decide to take misconduct action in circumstances ranging from a single allegation of a specific behaviour to broad concerns about many aspects of a person’s conduct. Regardless of where a matter falls on this spectrum, a decision will need to be made about what, specifically, the investigation is to consider. This includes both the particular incidents of alleged misconduct, and the particular elements of the Code that may have been breached.

7.34. Considering what specific conduct should be investigated may have regard to, for example, the seriousness of the allegations, whether there is a reasonable possibility of identifying evidence that could prove or disprove the allegations, and the cost of gathering particular forms of evidence.

7.35. Which elements of the Code will be in play will be a matter of judgement for the breach decision-maker. The decision-maker may opt to consider multiple elements of the Code, depending on the alleged misconduct, with a view that any final determination is more likely to be exhaustive. Alternatively, the decision-maker may choose one or two elements of the Code that are most relevant to the alleged misconduct if they believe that considering extra elements would add needless complexity to the decision or dilute the message about the seriousness with which the behaviour is viewed.

7.36. Where an element of the Code contains more than one obligation, it is not generally necessary for the person under investigation to have failed to comply with all of these in order for a breach of the Code to be determined. For example, s.13(3) of the PS Act states that an employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment. A person found to have behaved discourteously, but not also found to have engaged in harassing behaviour, could nonetheless be found to have breached the Code. Thus, a breach decision-maker may choose in some cases to consider a subset of the obligations in an element of the Code.

7.37. Agencies may provide general guidance to a breach decision-maker on which element(s) of the Code the person under investigation may have breached. However, the breach decision-maker needs to form their own judgements as to the scope of the investigation, as they are ultimately responsible for establishing independently whether the person under investigation has breached specific elements of the Code.

Varying the scope

7.38. As an investigation progresses, the investigator or breach decision-maker may discover additional allegations, or consider that the behaviours under investigation suggest additional elements of the Code may have been breached. In these circumstances, it may be reasonable to broaden the scope of the investigation.

7.39. Where a decision is made to do so, the person under investigation must be advised of the additional allegations or elements of the Code, and given a further opportunity to comment, consistent with the requirements of procedural fairness.

7.40. In some cases, agencies may need to consider whether new evidence or allegations should be dealt with separately, rather than varying the scope of the original investigation. This may be a matter of careful judgement, having regard to, for example, the degree of connection between the substance of the new and the original allegations, or any concerns about a decision-maker’s real or apparent bias in relation to the new matter.

7.41. If an agency is considering dealing separately with new allegations, a decision needs to be made about whether a new misconduct process is the proportionate response in the circumstances, or whether other management action would be preferable, having regard to the considerations in Chapter 4.

Drafting allegations

7.42. An ‘allegation’ in a misconduct investigation is a statement to the effect that the agency believes a person to have done a specific thing, at a specific time and place, which on its face appears to be inconsistent with one or more obligations in one or more elements of the Code.

7.43. Allegations need to be capable of being proved or disproved. If a complaint or concern about a person’s behaviour is not capable of being expressed as a testable allegation, agencies should consider ways of managing the issue outside the misconduct framework.

7.44. Allegations presented to the person under investigation in a notice of investigation are an articulation of the scope of the investigation, and of the ‘case against them’ to which the person is expected to respond. They form the basis for the investigation and the framework for the investigation report.

7.45. An effective allegation is one that enables the person under investigation to understand exactly what they are alleged to have done, and to feel confident that the agency has not prejudged the outcome of the investigation. Effective allegations can also help agencies meet the requirements of procedural fairness:

Procedural fairness requires the person under investigation to be given a reasonable opportunity to respond to the allegations against them before a decision is made. This means that allegations should be presented in a way that is clear, specific, and unambiguous.
Procedural fairness also requires a decision-maker to be free from real or apparent bias—thus allegations also need to be drafted using language that is neutral and objective.

7.46. Drafting allegations in clear and neutral terms can also ensure they are easier to prove or disprove. For example, an allegation that a person ‘raised their voice and struck a table with their fist’ in a meeting is more easily tested than one stating that the person ‘got angry and abusive’ in the meeting. The first is framed in terms of observable behaviour, and the person under investigation and any witnesses can be asked whether the person did in fact raise their voice and strike the table, and this evidence assessed on the balance of probabilities. It is much harder to establish whether the person was ‘angry and abusive’, however, as these are terms that can be interpreted subjectively. As well, this framing appears to require the person’s mental state to be established, which is not necessary for a determination of a Code breach.

7.47. As such, allegations should:

set out specific incidents of observable behaviour in clear, objective language
state when and where the behaviour is alleged to have happened
separate multiple incidents so that each can be tested on its own
avoid using terms with specific legal definitions that need to be established, such as ‘assault’, ‘discrimination’, ‘fraud’, ‘theft’, etc. A determination of a Code breach does not require behaviour to meet the definitions or standards of such terms
if a policy is alleged to have been breached, state the specific provision of the specific policy
state which elements of the Code may be in breach if the allegation is proven on the facts.

Investigation plan

7.48. It is good practice to develop an investigation plan at the beginning of the process to articulate what needs to be done to establish the facts. A plan can include the following considerations:

Who is being investigated? What is the specific behaviour they are alleged to have engaged in?
What needs to be found out in order to establish the facts—i.e. to prove or disprove whether the person did what they were alleged to have done?
What evidence needs to be gathered and assessed in order to make findings of fact, and what are the potential difficulties in obtaining that evidence, if any? Are there timing considerations in gathering particular forms of evidence?
What is the quality of evidence needed in order to support a reasoned and reasonable determination of whether there has been a breach?
Who needs to be interviewed?
Are there any risks that need to be managed? For example, medical considerations, cultural considerations, absences from the workplace, or impact on the workplace.
Is legal advice needed?
Do any reasonable adjustments need to be made to enable the person under investigation, or any witnesses, to participate in the process?

On the basis of these factors, how long can the investigation be expected to take? What are the timeframes for key milestones?
How will confidentiality be handled in relation to the identity of the person who reported the alleged misconduct, or witnesses? This is particularly important if the allegation was made as a disclosure under the PID Act.
What are the privacy issues raised by this matter, and what steps need to be taken to meet the agency’s obligations under the Privacy Act?

Timeliness

7.49. The Commissioner’s Directions stipulate that the process for determining whether a person has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows. This means that the investigation needs to be conducted efficiently—but that this should not come at the expense of a properly conducted process, or of procedural fairness obligations.

7.50. Agencies should ensure timeliness in their investigations to the extent practicable, noting that some delays may be outside the agency’s control—for example, those due to unscheduled absences, or to criminal matters that are awaiting resolution. Decision-makers should also consider whether requests from a person under investigation for multiple extensions of time to respond, or requests for an extended period of time to respond, are reasonable in the circumstances.

7.51. Ensuring timeliness is important for a number of reasons. Delays can affect the availability of reliable evidence, and the capacity of the person under investigation to respond fully to the case against them. For these reasons, among others, delays in investigations can reduce the likelihood of reaching a concluded view on whether the person did what they were alleged to have done. Unreasonable or extended delays in the investigative process, because of their effect on the person under investigation, can be a mitigating factor when deciding sanction. They are also a factor that may be considered by external review bodies.

Notice of investigation

7.52. Section 59 of the Commissioner’s Directions provides that a person alleged to have breached the Code must be informed of certain matters before a determination is made. Many agencies do this in the form of a written notice of investigation.

7.53. A person under investigation should be notified at the earliest reasonable time of the decision to start a misconduct investigation, and of the identities of the person or people involved in investigating the allegations, making the breach determination, and making the sanction decision (if that person has been appointed at this stage). This allows the person under investigation to raise any concerns about apprehension of bias. Advising the person earlier rather than later can also help to avoid the undesirable risk of the person finding out through unofficial sources that an investigation is underway.

7.54. Any notice to the person under investigation must be consistent with the requirements of the agency’s s.15(3) procedures, which in turn must be consistent with s.59 of the Commissioner’s Directions.

7.55. As a matter of good practice, a notice of investigation generally should set out:

the specific behaviour the person is alleged to have engaged in
the element(s) of the Code they are alleged to have breached
the full range of sanctions that may apply
who will be investigating the alleged misconduct, if this is different from the decision-maker
the decision-maker who will make the determination.

7.56. The notice should be drafted in neutral language to avoid the risk of appearing to have prejudged the outcome of the investigation. Notices should not include expressions of disappointment in the person or their behaviour, or language that presuppose that the person has behaved improperly or breached the Code.

7.57. The notice may include a statement advising the person under investigation that their personal information is being collected, the uses to which it will be put, and the circumstances in which it will be disclosed.

7.58. The notice may be signed, physically or electronically, by the person who has authorised the misconduct action, or by the decision-maker or investigator, in accordance with the agency’s s.15(3) procedures and relevant guidance or policies. A copy of this notice should be retained on the misconduct file—see section 12.1: Recordkeeping requirements.

7.59. As a matter of good practice, agencies are advised to attach to the notice information about how the misconduct process will proceed, a copy of the agency’s s.15(3) procedures, and any relevant guidance material. Agencies may also consider including information about the support and advice available to the person under investigation. Employees may be offered support from, for example, their manager, HR, or the agency Employee Assistance Program, and both current and former employees may seek advice from the Ethics Advisory Service. Generally, employees and former employees are not entitled to assistance in meeting legal expenses incurred in relation to misconduct action (paragraph 2A of Appendix E to the Legal Services Directions 2017).

7.60. It may not always be possible to give the person under investigation complete details of the alleged breach at the outset of an investigation. In such cases, it is appropriate to inform the person in writing that an investigation has started, and outline the allegations as they are known at the time. The person should be advised that they will be given further detail about the allegations as the investigation progresses, and an opportunity to make a statement in relation to the allegations and evidence, once the evidence has been gathered and before a determination is made.