Chapter 6: Misconduct action: legislative basis and roles

6.1. The PS Act provides a framework for determining whether an APS employee or former employee has breached the Code, and, where necessary, for imposing sanctions.

Section 15(3) procedures

6.2. Section 15(3) of the PS Act requires agency heads to develop written procedures for determining:

• whether an employee, or former employee, in their agency has breached the Code, and
• the sanction, if any, that is to be imposed on an employee where a breach of the Code has been found.

6.3. The s.15(3) procedures must:

• comply with the basic procedural requirements set out in the Commissioner’s Directions (s.15(4)(a) of the PS Act), and
• have due regard to procedural fairness (s.15(4)(b) of the PS Act).

6.4. Section 15(4)(b) of the PS Act explicitly recognises that the administrative law principle of procedural fairness applies to the misconduct process.

6.5. Agency heads must ensure that the agency’s s.15(3) procedures are made publicly available (s.15(7) of the PS Act). Many agencies meet this requirement by publishing their procedures on their websites.

6.6. Section 15(5) of the PS Act provides that agency procedures may include different procedures to deal with:

• different categories of employees—for example, probationers,
• determining breach for former employees, or
• determining breach for employees, or former employees, who have been found to have committed an offence against a Commonwealth, State, or Territory law.

Procedural fairness

6.7. Generally, administrative decisions, such as those taken in the misconduct process, must have regard to procedural fairness. Procedural fairness requires that:

• a decision-maker is impartial, and free from actual or apparent bias (the bias rule),
• a person whose interests will be affected by a proposed decision receives a fair hearing, including the opportunity to respond to any adverse material that could influence the decision (the hearing rule), and
• findings are based on evidence that is relevant and logically capable of supporting the findings made (the evidence rule).

6.8. The right to procedural fairness arises only in relation to a person whose rights or interests may be adversely affected by a decision. Usually this will only be the employee whose conduct is in question, rather than, for example, witnesses or complainants.

6.9. Procedural fairness obligations do not apply to decisions about whether to commence a misconduct investigation. However, such decisions may be reviewable in accordance with s.33 of the PS Act in some circumstances.

Basic procedural requirements

6.10. Part 7 of the Commissioner’s Directions sets out the basic procedural requirements with which agency s.15(3) procedures must comply.

An employee alleged to have breached the Code must be informed that a determination is being considered (s.59(a))

6.11. A determination cannot be made in relation to an alleged breach of the Code unless reasonable steps have been taken to inform the employee or former employee of the details of the alleged breach, and, for an employee, the sanctions that may be imposed.

6.12. In practice, agencies should:

• inform the person under investigation of the substance of what they are alleged to have done and what elements of the Code they are alleged to have breached
• provide the person under investigation with information on any variation in the alleged breach.

The person under investigation must be given a reasonable opportunity to make a statement in relation to the alleged breach (s.59(b))

6.13. In practice, agencies should:

• give the person under investigation a reasonable opportunity to respond to the substance of the evidence gathered during the investigation, including adverse claims or evidence, before a decision is made
• ensure the breach decision-maker gives proper consideration to the person’s statement and response to the evidence before making a determination.

6.14. If, during the investigation, new evidence comes to light about the actions or behaviours of the person under investigation, reasonable steps must be taken to notify the person of the substance of this additional evidence, or any new allegations, and give them an opportunity to respond, before a determination is made. This could include information suggesting possible additional breaches of the Code, or that the alleged conduct may be more serious than initially assessed.

6.15. These requirements are consistent with the hearing rule of procedural fairness.

An employee determined to have breached the Code must be informed before a sanction is imposed, and given reasonable opportunity to comment on sanctions under consideration (s.60)

6.16. If a determination is made that an employee has breached the Code, a sanction cannot be imposed unless reasonable steps have been taken to inform the employee of the determination and each sanction being considered, and give them reasonable opportunity to comment. A sanction cannot be imposed on a former employee.

6.17. Informing the employee means more than simply advising them of the range of sanctions available under s.15(1) of the PS Act. The agency must also take reasonable steps to inform the employee of the factors that are being considered in deciding on a sanction, and give the employee a reasonable opportunity to make a statement in relation to the sanctions under consideration.

6.18. These requirements are consistent with the hearing rule of procedural fairness.

Decision-makers must be independent and unbiased (s.61)

6.19. Reasonable steps must be taken to ensure that the individuals who determine whether there has been a breach of the Code, and decide any sanction, are free from actual bias or any reasonable apprehension of bias. The test for reasonable apprehension of bias is whether a hypothetical fair-minded person, properly informed of relevant circumstances, could reasonably form the view that the decision-maker might not have brought an impartial mind to the decision.

6.20. Examples of circumstances where bias could arise, or could reasonably be thought to arise, include the following:

• The decision-maker has a personal interest in the decision, including, for example, a personal relationship or a close working relationship with the person under investigation, a complainant, or a witness.
• The decision-maker has previously expressed a concluded view on a matter that needs to be determined.
• The decision-maker has had access to prejudicial information, not relevant to the matters to be determined, but which could reasonably be believed to be capable of influencing the decision-maker’s views.
• A senior manager makes comments on the case in a manner which could reasonably be perceived to influence a more junior decision-maker.
• The decision-maker is a witness in the matter.

6.21. Decision-makers should keep an open mind about the matters under investigation, and weigh the evidence fairly and dispassionately. Any favourable or adverse findings must be based on information or evidence that logically supports those findings, consistent with the evidence rule of procedural fairness. For this reason, among others, it is good practice for decision-makers to document the reasons for their decisions.

Determination process should be informal and prompt (s.62)

6.22. The process for determining whether an employee or former employee has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

Decisions must be recorded in writing (s.63)

6.23. If a determination is made in relation to an alleged breach of the Code, a written record must be made of the determination—whether or not a breach was found.

6.24. Where a breach is determined and a sanction imposed, a record must also be made of the sanction decision.

6.25. If a statement of reasons is given to the person under investigation, that statement must be included in the written record.

• While there is no legislative requirement to provide a statement of reasons for breach or sanction decisions, it is good practice to inform an employee or former employee in writing of the reasons for a breach or sanction decision to ensure they understand why the decision was made and can meaningfully consider whether to pursue any avenue of review.

Additional requirements—SES employees (s.64)

6.26. When the conduct of an SES employee is called into question, the agency head must consult with the Commissioner on the process for handling the matter, including the decision on whether to start misconduct action.

6.27. Agency heads must also consult the Commissioner before imposing a sanction on an SES employee.

Drafting agency 15(3) procedures

6.28. Agencies should keep their s.15(3) procedures relatively brief and as flexible as possible while still meeting the legislative requirements.

• For example, it may provide greater flexibility not to mandate that the person under investigation must receive an oral hearing, or must receive evidence in a particular form (including a draft investigation report), as it may not be possible to meet these requirements in all cases.
• If agencies wish to provide practitioners and employees with detailed advice, this can be set out in separate guidance material. Agencies should ensure, however, that such guidance avoids language that appears to impose mandatory requirements, such as ‘must’, unless this is intended and appropriate—for example, references to the requirements of the statutory framework.

6.29. It is good practice for agency s.15(3) procedures to include a statement about how the person who determines whether a breach has occurred is to be appointed or authorised.

• While an agency head may nominate any person to make that selection, it is generally good practice for agency s.15(3) procedures to identify clearly at least one person or position responsible for selecting a decision-maker.

6.30. Agency procedures should not seek to regulate when it is appropriate to start an investigation, as this is a matter of broad discretion having regard to all the circumstances.

6.31. Agency s.15(3) procedures should be established as soon as practicable after the creation of a new agency.

• Where agencies are affected by Machinery of Government (MoG) changes, including a name change or changes to administrative functions, agencies should review their procedures, and update or remake them if necessary. Agencies should seek legal advice if in doubt about the validity of procedures applied to alleged misconduct after a MoG change.

6.32. Where a new agency head is appointed, the agency’s s.15(3) procedures continue to apply. The new agency head may choose to issue new procedures but is not required to do so.

6.33. Where an agency is seeking to change or remake its s.15(3) procedures, it is good practice to provide for transitional arrangements.

Available sanctions

6.34.If an employee is found to have breached the Code, an agency head may impose sanctions. A sanction cannot be imposed on a former employee.

6.35. Sanctions are intended to be proportionate to the nature of the breach, to be a deterrent to the employee and others, and to demonstrate that misconduct is not tolerated in the agency.

 

6.36. A sanction decision-maker may impose one or more of the following sanctions (s.15(1) of the PS Act):

• termination of employment
• reduction in classification
• re-assignment of duties
• reduction in salary
• deductions from salary, by way of fine
• a reprimand.

6.37. There is no provision in the PS Act for any other form of sanction.

6.38. A determination that an employee has breached the Code does not necessarily mean that a sanction will or should be imposed. A decision can be taken that no other action is necessary, or that other remedial action may be appropriate, or that management action has resolved the issue.

6.39. Agencies may take reasonable management action at any time, including where no breach is found, or where there has been a breach of the Code but no sanction imposed, or in addition to a sanction. For example, an agency could require an employee to participate in coaching to improve their skills or capability in a specific area, or provide mediation where there is an interpersonal dispute, or issue a warning in relation to specific behaviour, or require all employees to undergo training where a need is identified, regardless of whether a breach has been found or a sanction imposed. Any such response should clearly be identified as management action, rather than a sanction under s.15(1) of the PS Act.

Key roles

6.40. There are a number of key roles in a misconduct process, and agencies need to consider whether it is appropriate for the same person to fulfil more than one. Subject to agency s.15(3) procedures, it is possible for one person to act as both breach decision-maker and sanction decision-maker, though in some circumstances appointing separate decision-makers can avoid a perception of bias. Where suspension is being considered, it is desirable that a separate person with delegation under regulation 3.10 of the PS Regulations makes the suspension decision.

Breach decision-maker

Role

6.41. The role of the breach decision-maker is to determine, in accordance with the agency’s s.15(3) procedures, whether or not a person has breached the Code. In effect, the breach decision-maker should establish two things:

1. whether the alleged conduct in fact occurred, and
2. if it did, whether that conduct is inconsistent with one or more elements of the Code.

Appointment

6.42. A breach decision-maker is appointed or authorised in accordance with an agency’s s.15(3) procedures. Determining a breach of the Code is not a delegable power or function under the PS Act. An agency’s s.15(3) procedures may identify the classification or position of persons with authority to appoint the breach decision-maker, and, if so, the breach decision-maker must be appointed in accordance with these requirements. It is advisable for the breach decision-maker’s appointment or authorisation to be in writing.

Considerations

6.43. The breach decision-maker should be a person who exercises sound judgement, understands the legislative framework and requirements for making a breach determination, and is familiar with the agency’s business to the extent required to appreciate the context of the alleged misconduct and the evidence collected. They should be someone who is trusted to make autonomous decisions that have significant impact on individuals and the agency.

6.44. The person who appoints or authorises the breach decision-maker should consider any previous involvement a proposed decision-maker has had in the matter, or a related matter. If there is any doubt about a proposed decision-maker’s actual or apparent impartiality, the agency should make another choice. It may be appropriate, subject to agency s.15(3) procedures, for a person from outside the agency or the APS to be appointed, if it is not possible to find a decision-maker free from apparent bias within the agency.

6.45. The breach decision-maker may conduct the investigation themselves, or use an investigator. Where an investigator is used, the breach decision-maker still needs to form an independent view of the evidence, and remains responsible for making findings of fact and for any determination of breach of the Code.

6.46. The breach decision-maker also has ultimate responsibility for ensuring that the decision-making process adheres to administrative law requirements, including procedural fairness, and the agency’s s.15(3) procedures. It is important for the breach decision-maker to be satisfied with the approach to and quality of the investigation, including:

• the quality and quantity of the evidence, and whether or not the evidence establishes the facts on which any finding of misconduct is based
• the way the evidence has been collected
• that the agency’s s.15(3) procedures have been complied with and other legal requirements met, including procedural fairness.

6.47. Where the decision-maker or investigator are internal to the agency, it may be helpful for them to be released from some or all of their normal duties while they conduct the investigation to ensure a timely process. Agencies may also need to consider special accommodation arrangements for decision-makers or investigators, such as the provision of an office or a secure cabinet for storage of sensitive material, as well as access to specialist advice to assist them in interpreting evidence or dealing with legal questions.

Investigator

Role

6.48. The role of an investigator is to gather evidence, including, where appropriate, interviewing witnesses, and to communicate with the person under investigation and any witnesses. The investigator may provide the decision-maker with their own opinions about the facts of the case, and prepare a report with recommendations, where this is consistent with agency s.15(3) procedures.

Appointment

6.49. Investigating alleged breaches of the Code is not a delegable power or function under the PS Act. An investigator is appointed or authorised by someone in the agency with the authority to make such appointments or authorisations. If agency s.15(3) procedures include provisions for appointing an investigator, the investigator must be appointed in accordance with the procedures.

Considerations

6.50. A person who investigates alleged breaches of the Code should have:

• a good understanding of the APS employment framework; in particular, the PS Act and subordinate legislation, and the relevant requirements of the Fair Work Act
• a good understanding of relevant requirements of the Privacy Act and the PID Act
• a good understanding of administrative decision-making, including the requirements of procedural fairness and the need for balanced, reasonable, and fair decisions
• sound skills in gathering evidence and conducting interviews
• sound analytical skills, good judgement, strong interpersonal skills, and strong oral and written communication skills
• a capacity to conduct administrative investigations, including weighing conflicting evidence for the purpose of making findings of fact
• a capacity to provide a written report that is evidence-based, demonstrates sound reasoning, and sets out the process followed in the investigation, and the findings, in a logical, clear way.

6.51.It may be useful for agencies to consider the options available to them in the event that they need to conduct an investigation. Some agencies may have a pool of employees with experience or training in misconduct investigations and knowledge of administrative law principles, while others may seek assistance from their portfolio department or another agency, or engage an external provider to conduct an investigation.

Sanction decision-maker

Role

6.52. The role of the sanction decision-maker is to decide whether a sanction should be imposed on an employee found to have breached the Code, and, if so, the sanction or sanctions that are appropriate and proportionate in the circumstances.

Appointment

6.53. A sanction decision-maker is a person who has been given a delegation to impose a sanction from the range set out in s.15(1) of the PS Act.

6.54. The framing of the delegation instrument should use broad language, bringing in relevant powers and functions under the PS Act and the Public Service Classification Rules 2000.

6.55. The sanction decision-making power may be delegated to a person outside the agency or outside the APS. However, the prior written consent of the Commissioner must be obtained if an agency wishes to delegate the sanction decision-making power to an ‘outsider’—i.e. a person who is neither an APS employee, nor a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth (ss.78(7) and (8) of the PS Act).

Considerations

6.56. A sanction decision-maker should be, and should appear to be, independent and unbiased, and should exercise good judgement. They should be familiar with the agency’s business and trusted to make autonomous decisions that have significant impact on individuals and the agency.

6.57. To help ensure the quality and consistency of sanctions, agencies may wish to limit the delegation to apply a sanction to a small number of people within the agency, and further limit the number of people with the delegation to impose more serious sanctions.

Suspension decision-maker

Role

6.58. The role of the suspension decision-maker is to decide whether it is appropriate to suspend an employee alleged to have breached the Code, having regard to the public interest and the agency’s interest. The suspension decision-maker is required to decide whether suspension is to be with or without remuneration, and must review the suspension at reasonable intervals.

Appointment

6.59. A suspension decision-maker must be given a delegation to exercise the powers and functions in s.28 of the PS Act and regulation 3.10 of the PS Regulations. These powers and functions can be delegated to a person outside the agency or outside the APS—however, delegation to an ‘outsider’ requires the prior written consent of the Commissioner (ss.78(7) and (8) of the PS Act).

Considerations

6.60. A suspension decision-maker may make necessary inquiries to decide whether suspension is appropriate in the circumstances. This may include informing themselves of the results of any preliminary considerations to inform their assessment of the nature and seriousness of the alleged misconduct.

6.61. To avoid the perception of bias or any real or apparent conflicts of interest, it is generally good administrative practice for the suspension decision-maker not to be involved in the related misconduct investigation under the agency’s s.15(3) procedures.

Support roles

Case manager

6.62. ‘Case manager’ is a term used in a range of ways across agencies. In a misconduct process, agencies may wish to have a dedicated person who liaises with the person under investigation, manages the contract for an external investigator if applicable, and overall acts as a single point of contact throughout the process. This person can also consider whether the person under investigation, or witnesses, require additional support from the agency. In some agencies, a case manager may also be the person responsible for investigating the alleged misconduct.

6.63. This role would generally be undertaken by someone in the HR area with a good understanding of the misconduct process, experience in procurement and contract management if relevant, and the ability to deal sensitively with individuals who are involved in a process they may find personally difficult.

Support person

6.64.Agencies should advise the person under investigation, and relevant third parties such as witnesses, of their right to a support person at any stage of their involvement in a misconduct process. A support person is chosen by the person under investigation or witness.

6.65. Decisions of the Fair Work Commission indicate that while a support person cannot advocate for an employee or speak on their behalf, they may do more than simply provide emotional support. For example, a support person can help facilitate mutual understanding between an agency and an employee if the employee is having difficulty understanding the process or the agency is misconstruing the employee’s perspective. It may also be reasonable for a support person to assist the person under investigation, or witness, in preparing for a discussion or interview, or to take notes.

Representation and advocacy

6.66. Agency industrial instruments or s.15(3) procedures may provide a right to representation or an advocate for a person involved in a misconduct process. Where a person involved in a misconduct process has indicated that they would like to be represented by a third party, agencies may wish to seek legal advice about whether it is appropriate to permit such representation.