Chapter 3: Raising behavioural concerns and reporting suspected misconduct

3.1. The Commissioner’s Directions provide that upholding the ‘Ethical’ Value requires each employee, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely, and effective way (s.14(f) of the Commissioner’s Directions).

3.2. This means that every employee has, at a minimum, an obligation not to ignore concerning behaviour by others. To enable employees to meet this obligation, agencies should foster a culture in which employees feel empowered to raise concerns and confident that they will not be penalised for doing so in good faith. Employees should be able to expect their concerns to be taken seriously and addressed in an appropriate, timely, and proportionate way.

Options for raising concerns

3.3. The PS Act does not provide for a specific statutory reporting mechanism. Agencies may have a range of avenues for their employees to raise concerns about behaviour, report suspected breaches of the Code, or make public interest disclosures. Such avenues may include:

• line managers
• harassment contact officers (while they cannot accept reports or complaints, these officers can provide advice on options available to employees for dealing with concerns, including avenues for reporting suspected misconduct)
• central conduct or integrity units
• nominated individuals or teams in HR, including employee advice units or hotlines, or fraud prevention and control units or hotlines
• email reporting addresses
• ‘authorised officers’ who receive public interest disclosures.

3.4. Agencies should ensure employees are aware of these options and have easy access to them.

3.5. Agencies should also ensure that employees understand that ‘reporting’ concerning behaviour can be as simple as an informal conversation, and will not automatically trigger a formal investigation. Employees may be more comfortable raising concerns if they can do so relatively informally in the first instance.

3.6. Agencies may wish to provide guidance to employees on what to do if they have witnessed concerning behaviour. This may include:

• making notes about what they have seen or heard (as close to verbatim as possible)
• keeping any relevant documents and not making any written annotations on them
• reporting the matter through the appropriate channels but otherwise keeping it confidential.

Complainants: role and considerations

3.7. Generally, the role of a person making a complaint or report of concerning behaviour is to bring the matter to the agency’s attention, and, in a formal investigation, to cooperate as a witness.

3.8. It is not the complainant’s role to decide how their complaint will be addressed, including whether misconduct action will be taken. However, it is not uncommon, or in itself unreasonable, for a complainant to have preferences about the handling of their complaint, especially if they have been personally affected—for example, if they have alleged bullying or harassment. A complainant may, for instance, prefer a matter to be handled informally if they simply would like the behaviour to stop—or, conversely, they may believe the behaviour to be so serious that it can only be addressed through formal misconduct action. In such cases, the complainant’s views may be taken into account, but should not determine the agency’s response. Agency decisions should have regard to factors such as the apparent seriousness of the reported conduct, the availability of prima facie evidence, the agency’s statutory obligations (such as those under the WHS Act or the PID Act), and the potential impact on public confidence in the APS.

3.9. Whether or not an agency’s response to a complaint aligns with the complainant’s wishes, agencies should consider the support that can be offered to the complainant. Agencies may, for example, nominate a contact person in HR to provide information to the complainant and answer questions; or facilitate access to the Employee Assistance Program, or, where necessary and practicable, to specialised counselling or support targeted to the complainant’s needs.

3.10. Where an agency decides to start a misconduct process, it is not obliged to provide the complainant with progress reports of the investigation, though it may be reasonable to advise the complainant that an investigation is taking place and that they will be informed when it has concluded.

3.11. In some cases, a complainant may be entitled to seek review, under the review of action scheme in s.33 of the PS Act, of an agency’s response to their complaint—including a decision not to start a misconduct investigation. A decision is more likely to be reviewable if it directly affects the complainant’s APS employment—for example, if the complaint relates to alleged bullying or harassment which the complainant believes is unresolved.

Protecting complainants and witnesses

3.12. Agencies should ensure they have measures in place for protecting complainants and witnesses from adverse consequences of coming forward with concerns or information, and should ensure complainants and witnesses are made aware of these, and of the support available to them.

Anonymity and confidentiality

3.13. Some employees may be concerned that reprisal action will be taken against them as a result of raising concerns or reporting suspected misconduct. For this reason, they may make reports anonymously, or ask that their identity be kept confidential.

Anonymous reports

3.14. Agencies are encouraged to provide avenues for anonymous reporting, as this can bring to light behavioural concerns that might not otherwise become apparent.

3.15. There may be limits to the extent to which anonymous reports can be investigated and addressed, and agencies should explain this to anonymous complainants where possible. Agencies should carefully consider how an anonymous complaint can be considered or investigated, including the available relevant information and avenues of inquiry. Where an agency has exhausted available lines of inquiry, it may be reasonable to decide that no further action will be taken. It may be appropriate to inform the complainant, where contact information is available, that inquiries have been made to the extent possible, but that without identifying the complainant no further action can be taken.

3.16. That said, even if no further action can be taken on an individual matter, the report can assist agencies in identifying relevant trends and patterns.

Confidentiality

3.17. In some cases, a complainant will make their identity known to the agency, but request that it not be disclosed further.

3.18. While agencies may undertake to maintain confidentiality to the extent possible, it can often be necessary to reveal the identity of the complainant or a witness in order to provide the person under investigation with the information they need to respond fully to the allegations. In some cases, identities may become apparent simply by virtue of the nature of the complaint.

3.19. As well, even if an agency considers that it is not necessary to reveal identities of complainants and witnesses during the course of its own investigation, identities may be revealed on review by the MPC or the Fair Work Commission, in related criminal proceedings, or in the context of a legal challenge to the decision.

3.20. This means it is advisable for agencies to notify complainants and individuals who provide witness statements that the agency will seek to keep their identity confidential as far as practicable, but cannot give any guarantee of confidentiality. Agencies should advise complainants at the outset of how information about their complaint and their identity will be dealt with, and of any potential limitations on the ability to keep their identity confidential. Limits may apply, for example, if the recipient of the information is subject to reporting obligations, or if information needs to be provided to the person under investigation if an investigation is pursued.

Protection from reprisal

3.21. Employees who make allegations of misconduct are protected from reprisal. Retaliation against someone who has made a complaint in good faith could be a potential breach of a number of elements of the Code, including the requirements to:

• behave with integrity in connection with employment
• comply with all applicable Australian laws
• treat everyone with respect and courtesy, and without harassment.

3.22. In general, these protections also extend to witnesses in misconduct investigations.

3.23. Employees and witnesses may feel more confident about providing evidence in misconduct processes if they are assured that an assessment has been made of the risk of retaliation, or other adverse outcomes, and that the agency has taken steps to mitigate these risks.

3.24. Agency guidance material should therefore provide assurance that employees who report in good faith will be protected from reprisal, and should have in place strategies for ensuring this. Mitigation strategies should be proportionate to the type and level of risk identified, and may include:

• issuing a direction to an employee about whom a complaint has been made regarding their behaviour towards the complainant and witnesses, including not entering into discussions about the incident with the complainant or others
• arranging for a person under investigation to be temporarily assigned duties in another location during the misconduct process, without appearing to prejudge the matter
• assigning the complainant or witness other appropriate duties in another location, while ensuring that this is not perceived as a reprisal in itself
• developing and implementing a specially tailored protection plan in circumstances where there is a real risk to the physical security of employees, their families, or property
• taking steps to ensure the fairness of employment decision-making affecting the complainant or witnesses, where there is a risk these may be influenced (or be perceived to be influenced) by the making of the complaint or by the person who is the subject of the complaint—such as appointing an independent member to the selection committee for any selection exercise in which they are a candidate.

3.25. In cases where suspected misconduct is reported under the PID Act, agencies must take into account the specific protections in the PID Act for disclosers, and should seek legal advice if in doubt.

Informing complainants of the outcome of their complaint

3.26. In deciding what information to provide to a complainant about the outcome of their complaint, agencies need to balance the right to privacy of the person about whom the complaint was made with the complainant’s legitimate interest in knowing that the agency has dealt properly with the matter.

3.27. Balancing these interests and obligations can be a matter of careful judgement, taking into account all the circumstances of a given case. Agencies should ultimately have regard to the need to maintain confidence in the integrity of the APS.

3.28. In this context, agencies should consider the information that may appropriately be disclosed in order to provide reasonable assurance that they:

• have an interest in maintaining proper standards of conduct
• act with transparency in upholding the integrity of the APS
• take misconduct allegations seriously
• impose appropriate and proportionate sanctions where a breach has been found
• take appropriate steps to ensure unacceptable behaviour will not recur.

3.29. When disclosing information to an APS employee, an agency may direct the employee not to disclose the information further, in order to protect the privacy of the person about whom the complaint was made, and, where relevant, the integrity of an investigation.

3.30. When disclosing information to a complainant who is not an APS employee, an agency may request that the information not be circulated further, but should be mindful of the risk of the information being distributed more widely than intended. This should not preclude agencies from lawfully disclosing information—however, agencies should carefully balance risks to an employee’s privacy and reputation against the need for transparency in these circumstances.

Vexatious or misconceived complaints

3.31. Some allegations of misconduct may be misconceived or without substance, or may have been made vexatiously. Where an agency has concerns about the way, or the circumstances, in which a complainant has reported suspected misconduct, it should take steps in the first instance to find out more. The cause may be a misunderstanding that can be remedied relatively simply—or instead might indicate a more serious concern, such as an interpersonal dispute or dissatisfaction with a performance management process, which may need to be managed in a specific way.

3.32. In some cases, it may be appropriate to advise an employee that making a frivolous or vexatious report of suspected misconduct could in itself be inconsistent with the Code—or to issue a direction to the employee in relation to making complaints. Care should be taken in the wording of such directions to ensure they do not impose limits on employees’ statutory rights to make complaints or reports, including public interest disclosures, or to seek reviews of action. If in doubt, agencies should seek legal advice to ensure the direction is lawful and reasonable.