Chapter 4 : When behaviour doesn’t meet expectations: preliminary considerations

4.1. The integrity of the APS is built on the integrity of every employee. If an employee’s behaviour does not meet the required standard, it can undermine trust in the APS as a whole—and work will need to be done for that trust to be restored.

4.2. At the same time, confidence and trust in the APS can be influenced as much by an agency’s response to an employee’s behaviour as by the behaviour itself. This means that the response should be proportionate, specific to the nature of the conduct, and aimed at restoration—be that of the reputation of the agency or APS, workplace relationships and morale, or employee productivity and capability.

4.3. 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.

4.4. Gathering further evidence to inform a decision about how to proceed is distinct from the process in a misconduct investigation of establishing facts on the balance of probabilities. Preliminary fact-finds do not establish whether the alleged conduct occurred, and should be undertaken only to the extent necessary for the agency to make a sound decision about how the matter should be handled.

4.5. Agencies should ensure this process of assessment and deliberation is kept as short as possible without compromising the quality of the work undertaken, and should seek to avoid duplicating a misconduct investigation prior to deciding whether to notify the employee of an alleged breach of the Code.

4.6. Agencies should be mindful that preliminary investigations or assessments, fact-finds, or other formal investigative processes that include, for example, terms of reference, interviewing witnesses and taking statements, and developing a report with recommendations, may attract procedural fairness obligations and can be subject to review or legal challenge.

Understand the circumstances

4.7. 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.

4.8. 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.

4.9. 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.

Conduct or performance?

4.10. In the APS, performance is understood to be more than the completion of assigned tasks and duties—effective performance lies not only in what we do but also in how we do it. As such, agencies are expected to embed behavioural requirements in employees’ performance expectations—for example, by including in performance agreements statements of how an employee will demonstrate aspects of the Values, Employment Principles, and Code in undertaking their duties.

4.11. The overlap between conduct and performance expectations means that there will not always be a clear distinction between a failure to meet performance standards and a failure to comply with expected behaviours. As discussed throughout this guide, agencies should take a targeted, proportionate, and restorative approach to behaviour that does not meet expectations, having regard to its nature and seriousness.

4.12. For this reason, this chapter as a whole should be considered the ‘relevant standards and guidance’ referred to in s.52 of the Commissioner’s Directions, which requires agencies to have regard to such standards and guidance when considering conduct that may relate to an employee’s effective performance or to potential breaches of the Code.

Does intent matter?

4.13. The Code does not use words such as ‘wilful’, ‘reckless’ or ‘negligent’ to qualify behaviour, and, generally speaking, intent does not need to be shown to determine that an employee has breached the Code. It can, for example, be inconsistent with the Code to act without respect and courtesy even if the employee did not intend to be disrespectful or discourteous. However, at the preliminary stage of considering conduct that appears not to meet expectations, it is reasonable for agencies to have regard to intent among other factors in deciding on a proportionate response.

4.14. Conduct that is the result of an honest and reasonable mistake, accident, or a lack of capability can generally be addressed through process improvements or management action such as training, performance management, or counselling. On the other hand, behaviour by an employee that is within their control—for example, a wilful refusal to follow lawful and reasonable directions, or a blatant disregard for expected behavioural standards—may be better dealt with through misconduct action.

Health conditions and disability

4.15. A health condition or disability does not exempt an employee from the requirements of the APS conduct framework. At the same time, where a health condition or disability is, or appears to be, affecting an employee’s behaviour, agencies should exercise sensitivity and care in their response.

4.16. Different considerations may apply depending on the interaction between a health condition or disability and an employee’s conduct—for example:

• where behaviour is caused or exacerbated by a health condition or disability
• where a manager notices unusual patterns of behaviour in an employee who has not disclosed a health condition or disability
• where an employee has disclosed a health condition or disability, but there is no apparent causal link between the disclosed condition and their conduct
• where a health condition or disability may affect the employee’s capacity to change their behaviour, engage constructively with management action, or participate in a misconduct process.

4.17. Wherever possible, these situations should be addressed in the first instance through a sensitive conversation between the employee and their manager. Agencies should ensure that managers have the capability and support to do this well. Such conversations should seek to clarify the situation, identify the employee’s needs and the support the agency can provide (including reasonable adjustments), and confirm the employee’s understanding of the behavioural standards expected of them.

4.18. Depending on the circumstances, the agency may seek the employee’s consent to engage with their treating healthcare professional to inform an appropriate and safe approach to ensuring behaviour meets the expected standard. There may be cases where the most effective and suitable response is to work with the employee and their treating doctors to assist the employee to manage the impact of their condition or disability on the workplace.

4.19. In some circumstances, it may be appropriate for the agency to refer an employee for an independent medical assessment, consistent with regulation 3.2 of the
PS Regulations. This can help ensure the agency has a clear understanding of the nature of the condition, and its impact on an employee’s behaviour, in order to inform an appropriate response.

Assess the seriousness

4.20. 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 those below. 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.

Factors to consider

Seniority

4.21. The more senior an employee, the greater the impact their behaviour can have on public confidence in the integrity of the APS. Senior employees are expected to exercise a greater degree of judgement, and to model expected behaviours. They occupy a greater position of trust, and consequently are held to the highest standards of accountability.

4.22. SES employees in particular have an obligation to uphold and promote the Values, Employment Principles, and Code, by personal example and other appropriate means. An agency’s response to concerns about the conduct of SES employees should have regard to these additional obligations, and to the greater impact of the conduct of SES employees on public confidence in the APS. Consistent with this principle, agencies are required under s.62 of the Commissioner’s Directions to consult the Commissioner on SES conduct matters.

Role

4.23. Agencies should consider whether the nature of the conduct, if proved, would reasonably call into question the employee’s ability to perform their current duties.

4.24.This can have regard to any specific expectations, job requirements, or ethical standards that apply to the role, such as the obligations that attach to legal or procurement positions. As well, if the employee is a subject matter expert, there may be greater impact on public confidence if they appear to have provided misleading information about their area of expertise, or to have used inside information or expert knowledge for personal gain, or to the benefit or detriment of others.

Nature and extent of conduct

4.25. The greater the extent to which the conduct appears to fall outside expected standards of behaviour, the more likely it is to undermine public confidence in the APS. For example, sustained and large scale fraud is more likely to undermine confidence than a single angry outburst.

4.26. Agencies should also consider whether a specific incident appears to form part of a pattern of behaviour or follows previous remedial action, or whether the employee has shown, through their behaviour, that they are unlikely to respond constructively to management action.

Unconscious bias

4.27. Agency assessments of the seriousness of employee conduct should take into account the impact of unconscious bias. Unconscious bias, or implicit bias, refers to the assumptions and associations that influence a person’s judgements of others, without the person’s conscious awareness of this taking place.

4.28. It may not be possible for anyone to be entirely free from unconscious bias—however, awareness of its nature and effects can assist in overcoming its influence and help ensure decisions are made fairly.

4.29. Different types of unconscious bias can affect decisions—for example:

• In-group bias can lead to assessments and decisions that are more favourable towards people who are similar to the decision-maker in attributes such as gender, culture or background, experience, interests, or personality.
• Anchoring bias can cause decision-makers to rely on information or beliefs they associate with the situation at hand, but which are actually irrelevant—for example, where a decision-maker has managed ‘someone like this’ previously with a poor outcome.
• Confirmation bias can lead to decisions that take account of information that conforms to existing beliefs and discounting information which does not.
• Availability bias can cause decision-makers to rely disproportionately on readily available information and data, rather than seeking out and utilising all available and relevant information.
• The bandwagon effect can lead decision-makers to be influenced by the behaviour of others to make decisions that do not accord with the circumstances of the particular case.

Respond proportionately

4.30. 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.

4.31. 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.

Options for managing lower-risk matters are set out in Chapter 5.

4.32. 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.

4.33. 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 (see ‘Changes in role, assigning different duties and suspension’). In such cases, agencies may also choose to commence a misconduct process promptly rather than extending their preliminary deliberations.

4.34. 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.

Historical matters

4.35. From time to time an agency may receive allegations of historical misconduct, or otherwise become aware of suspected misconduct from some considerable time in the past.

4.36. How long ago the alleged behaviour occurred may be a relevant consideration in deciding what action to take, having regard, for example, to the availability of evidence, the resources that can reasonably be allocated to considering the matter, and the impact of the allegation and its handling on the agency or on public confidence in the APS.

4.37. If an agency decides to take misconduct action in relation to a historical matter, this will need to be done in accordance with the Code as it applied at the time of the alleged misconduct. If the allegations relate to a former employee, misconduct action can only be taken if the former employee separated from the APS on or after
1 July 2013. Misconduct action relating to historical matters must be carried out under the agency’s current s.15(3) procedures. If in doubt, agencies should seek legal advice.