Chapter 9: Sanctions

9.1. Once a determination has been made that an employee has breached the Code, the next stage in the misconduct process is the consideration of an appropriate sanction. A sanction can only be imposed on an employee who has been found under agency s.15(3) procedures to have breached the Code.

9.2. Before a sanction may be imposed, the employee must be informed of the sanctions under consideration and the factors under consideration in deciding a sanction, and given reasonable opportunity to make a statement in relation to the sanctions under consideration (s.60 of the Commissioner’s Directions).

9.3. Where there are separate decision-makers for breach and sanction, it is open to the breach decision-maker to make recommendations about sanction. However, the sanction decision-maker needs to exercise the sanction power independently, based on their own consideration of the relevant matters. In making the sanction decision, the sanction decision-maker accepts, and acts on the basis of, the findings of the breach decision-maker.

9.4. If the sanction decision-maker forms the view that there has been a serious procedural flaw affecting the validity of the breach decision—for example, a failure to give the person under investigation an opportunity to comment on adverse material—they do not have the power to amend the breach determination or to review the decision-making process. In these circumstances, it is recommended that agencies seek legal advice on available options.

Factors to be considered in deciding a sanction

9.5. A sanction should provide a clear message to the employee that their behaviour was not acceptable, and deter them from repeating the behaviour. The ability of agencies to impose sanctions on employees found to have breached the Code is also intended to act as a general deterrent to all employees.

9.6. Sanctions should always be proportionate to the nature of the breach—where a sanction is too lenient, it is unlikely to change behaviour; if it is too severe, it is likely to be seen as unfair and may be counterproductive. There is no necessary link between the number of elements of the Code that an employee has breached and the severity of the sanction.

9.7. Management action such as counselling, training, mentoring, closer supervision,
or alternative dispute resolution may be considered more appropriate than a sanction in some cases. If this is decided, agencies should make clear to the employee that no sanction has been imposed. Such actions may also be taken in addition to a sanction if they are likely to assist the employee to change their behaviour. Again, agencies should clearly distinguish sanctions from management actions in such cases.

9.8. Prior misconduct is relevant to the imposition of a sanction, and should be taken into account by the sanction decision-maker where it:

• indicates that the employee was, or should have been, well aware of the standard of conduct expected and the potential consequences of misconduct, or
• demonstrates that the employee may be unwilling to adhere to the standard of conduct expected.

9.9. Sanction decision-makers should have regard to the impact of unconscious bias on their deliberations and decisions.

Some considerations in deciding sanction

9.10. Case law indicates a range of other factors that are, or may be, relevant in determining the level of a sanction.

Nature and seriousness of the breach

9.11. Considerations may include:

• the type of conduct involved
• amounts, values, or quantities
• the period over which the misconduct occurred
• evidence of any personal benefit from the breach
• the actual and potential consequences of the employee’s conduct.

Degree of relevance to employee’s duties and the reputation of the agency or APS

9.12. Considerations may include:

• the seniority of the employee—more senior employees are generally expected to set an example for more junior staff, and are required to exercise a greater degree of judgement
• whether a breach of trust was involved
• whether the nature of the breach has affected the confidence of the agency in the employee’s ability to perform their current duties
• any special job requirements—for example, to maintain specific professional or ethical standards
• the extent to which the misconduct affects, or may have affected, the reputation of the agency or the APS.

Whether the misconduct was uncharacteristic

9.13. Considerations may include:

• the employee’s length of service, balancing a previously unblemished record against the expectation of greater awareness of behavioural requirements
• whether there are records of previous counselling
• the extent to which there is evidence that the behaviour is atypical. To assess this, the behaviour over a longer period may need to be examined—for example, any records of discussion with the employee within the last two years. Relevance of previous behaviour diminishes over time
• the employee’s attempts to stabilise any personal situations affecting their behaviour
• support by colleagues and supervisors—for example, reports or references in relation to general character.

Employee response and likelihood of recurrence

9.14. Considerations may include:

• cooperation with the investigation
• whether the employee has reflected on the action, admits the breach and understands its seriousness, shows a willingness to take responsibility, and shows remorse and a commitment not to repeat the behaviour.

Mitigating factors

9.15. Considerations may include:

• the degree of responsibility for the breach and whether there was any provocation, persuasion, or even coercion, by other employees
• the intention of the employee to breach the Code, and whether the breach was premeditated or involved a spur-of-the-moment decision
• the extent to which an employee’s disability, health, or other factors may have influenced their conduct—however, care needs to be taken not to imply different standards of conduct based on the personal circumstances of employees
• whether sufficient guidance has been provided by the agency in relation to the Code in general and explicit guidance or directions about the particular behaviour, including whether policies are clear and consistently applied
• the extent to which the breach may have reflected a culture or common practice in the work area which needs to be addressed as a systemic problem
• any procedural issues—for example, unreasonable delay between the matter first coming to the agency’s notice and the sanction being imposed
• the effect of the proposed sanction on the employee, including any loss of earnings already incurred by the employee as a result of suspension without remuneration.

9.16. Factors that may not be relevant include claims that the employee found the misconduct process stressful or that the employee has incurred legal expenses.

Considerations in imposing particular sanctions

Termination of employment

9.17. Termination of employment is the most severe of sanctions. It may be appropriate where:

• the misconduct is so serious that it is no longer appropriate that the employee remain in the APS
• the employee, through their behaviour, has repudiated a basic element of the employment relationship—for example, by indicating that they do not accept the need to follow lawful and reasonable directions.

Reduction in classification

9.18. Reduction in classification is an appropriate sanction where, due to the misconduct, the employee can no longer be trusted to perform the duties of their current position or of any other position at the same classification or level of responsibility. For example, a reduction in classification may be the best sanction where an employee has demonstrated through their behaviour that it is not appropriate for them to have any supervisory responsibilities.

9.19. Reduction in classification is also appropriate where termination of employment would be warranted but there are mitigating factors which suggest that the employee should be given a chance to redeem themselves.

9.20. The agency should ensure that duties are available at the proposed classification before the sanction of reduction in classification is imposed.

9.21. A sanction of reduction in classification cannot be imposed for a specific period. The employee remains at the reduced classification until they secure higher duties or a promotion to their original classification, or a higher classification, in line with normal merit-based selection.

9.22. It is not reasonable for an agency to direct an employee whose classification has been reduced to refrain from applying for promotion or higher duties. However, an employee’s misconduct record can be considered in selection processes where it is relevant to the duties to be performed—see ‘Considering misconduct in a selection process’.

9.23. An employee whose classification is reduced under s.15(1)(b) of the PS Act would have their salary reduced commensurately. The sanction decision-maker needs to consider the agency’s pay scales and specify not only the new classification but also the appropriate pay point within the classification. Factors to consider include the following:

• The level to which an APS employee’s salary is to be reduced may be informed by the terms of the industrial instrument applying to their employment.
• Where the level to which an employee’s salary is to be reduced is not clear from the relevant industrial instrument, it is recommended that the sanction decision-maker impose two sanctions—a reduction in classification under s.15(1)(b) and a reduction in salary under s.15(1)(d)—to ensure that there is authority to reduce the salary to a particular point. It is possible for more than one sanction to be applied to an employee found to have breached the Code, if the sanction decision-maker is satisfied that more than one sanction is appropriate in the circumstances.

9.24. Where a sanction decision-maker has relied on the power in s.15(1)(b) to reduce an employee’s classification, but not on the power in s.15(1)(d) to specify a lower salary, it would be appropriate to place the employee on the top pay point at the lower classification.

9.25. A reduction in classification may be obvious to colleagues, and the subject of gossip and speculation. Agencies need to consider options to manage this in a way that minimises speculation and other possible adverse consequences.

Re-assignment of duties

9.26. The sanction of re-assignment of duties at the same classification, including to a different location, may be appropriate where the conduct in question does not warrant termination of employment but there may be adverse consequences if an employee is not removed from a particular location or from their current duties. For example, this could occur where:

• the nature of the employee’s conduct is such that it may be difficult for colleagues to continue working harmoniously with them
• the employee is no longer trusted to perform a particular aspect of their current duties.

9.27. A sanction of re-assignment of duties requires that alternative duties be available within the agency at the employee’s substantive classification.

9.28. As with a reduction in classification, agencies should consider whether they need to take steps to mitigate risks of gossip and other possible adverse consequences to the employee as a result of the re-assignment.

9.29. Where the re-assignment of duties involves a change of location, it is advisable to take into account the impact on the employee, such as financial costs and the effect of dislocation on the employee and their family. The sanction decision-maker should also take into account the financial impact on the employee of loss of allowances, such as shift work allowances, where relevant.

9.30. A re-assignment of duties may be imposed for a defined period if it is considered appropriate to return the employee to their former duties after a specific period of time.

Reduction in salary

9.31. A reduction in salary can be used to reinforce the seriousness with which the employee’s conduct is viewed. It may be appropriate where the employee’s behaviour during the misconduct process does not indicate that they understand the seriousness of the breach. A reduction in salary can be imposed for a specified and temporary period or an unspecified period.

9.32. A reduction in salary should be imposed in a reasonable and proportionate way. For this reason, it is advisable that agencies set the reduction for a specified and temporary period and state that period clearly in the sanction decision. At the end of the period of reduced salary, the employee is entitled to be paid the salary at the level they would have received if they had not been subject to a temporary reduction in salary.

9.33. The amount by which salary is to be reduced is a matter for the sanction decision-maker. However, as this is a different and generally a lesser sanction than a reduction in classification, the reduction in salary could be an amount valued at less than a reduction in classification.

9.34. Generally, any reduction in salary will be subject to a subsequent salary event, such as a promotion or a salary increase provided for in an industrial instrument. The likelihood of such events occurring during a specified period of temporary reduction should be considered by the sanction decision-maker, given that the effectiveness of the sanction may be reduced. It is, however, possible for an agency to impose a salary reduction for a specified period that makes provision for how the reduction would interact with any subsequent salary event. The sanction decision could state, for example, that there will be ‘a reduction of 10% in the salary which would otherwise be payable for a period of 12 months’.

Deductions from salary (fine)

9.35. This sanction may be appropriate for less serious breaches, where the agency needs to reinforce its concerns about the employee’s conduct by way of short-term financial impact. A sanction of a fine may be imposed by way of a one-off deduction, or by deducting an amount from salary each pay for a short, defined period. Deductions over a lengthy period would minimise the impact of the sanction. It is appropriate for the sanction decision-maker to decide the period of deductions taking into account any mitigating factors, including financial hardship, raised by the employee.

9.36. Deductions from salary are limited to no more than two per cent of an employee’s annual salary (regulation 2.3 of the PS Regulations). In determining the upper limit of a fine in a particular case, the decision-maker needs to consider the meaning of the term ‘salary’ as provided for in the agency’s remuneration arrangements.

Reprimand

9.37. A reprimand is the least severe form of sanction. It is most appropriate in situations where the misconduct is of a less serious nature, and where it is clear that the employee has learned from the misconduct process and presents little appreciable risk of further misconduct.

9.38. A reprimand acts as both a mark of disapproval of past conduct and as a warning for the future. A reprimand is not counselling—rather, it delivers a clear message to the employee that their behaviour was found to be below the required standard.

9.39. Consideration needs to be given to the most effective person to deliver the reprimand. Generally, a reprimand delivered by a higher-level manager will carry greatest weight.

9.40. A reprimand is subject to the same standards of recordkeeping as other sanctions. For this reason, it may be practical for the reprimand to be delivered at a face-to-face meeting, with a written record of the reprimand provided to the employee at the conclusion of the meeting, and a copy placed on the misconduct file.

Recording the sanction decision and advising the outcome

9.41. Under s.63 of the Commissioner’s Directions, a written record must be made of the sanction decision, and, if the employee was provided with a statement of reasons, the record must include that statement. Agency s.15(3) procedures may prescribe the form of such a written record.

9.42. As a matter of good practice, a sanction decision record should generally include:

• a description of the relevant actions and behaviours, and the elements of the Code that were breached
• the decision-maker’s assessment of the seriousness of the breach
• the decision-maker’s assessment of aggravating and mitigating factors, if any
• the decision on whether or not a sanction needs to be imposed, and, if not, the factors the decision-maker considers relevant to taking other management action as an alternative
• the sanction to be imposed.

9.43. The employee should be promptly notified in writing of the sanction decision and of their review rights.

9.44. Any suspension from duty must end at this point (subregulation 3.10(6) of the
PS Regulations).

Date of effect

9.45. The date of effect of a sanction will not necessarily be the same as the date on which the sanction is decided. It may be necessary to allow time for administrative action to be taken to put the sanction into effect—for example, organising an appropriate placement for a re-assignment of duties.

9.46. The date a sanction takes effect is not delayed where an employee applies for a review of the breach or sanction decision by the MPC.

Procedural fairness in the sanction decision

9.47. Provisions in the PS Act and the Commissioner’s Directions emphasise the need to ensure procedural fairness in relation to any decision to impose a sanction on an employee.

9.48. Sanctions may only be imposed consistent with the agency’s s.15(3) procedures. In line with s.60 of the Commissioner’s Directions, agency s.15(3) procedures must include a requirement to the effect that a sanction may not be imposed unless reasonable steps have been taken to:

1. inform the employee of:
   1. the determination, and
   2. the sanction or sanctions that are under consideration, and
   3. the factors that are under consideration in determining any sanction to be imposed, and
2. give the employee a reasonable opportunity to make a statement in relation to sanction(s) under consideration.

9.49. The employee must be given a reasonable opportunity to comment on the proposed sanction(s), and the factors under consideration, before a decision on sanction is made. The sanction decision-maker must consider the employee’s comments before finalising the sanction decision. This deliberative process should include an impartial consideration of the employee’s comments concerning both the sanction(s) that might be applied, and any information or personal factors that may be relevant to that decision. It is good practice for the decision-maker to document this deliberation.

9.50. If, after receiving the employee’s comments, the sanction decision-maker is inclined to impose a more severe sanction than was communicated to the employee, the decision-maker must advise the employee of this and give them a further reasonable opportunity to comment.

Other considerations

Applying multiple sanctions

9.51. It is possible to impose more than one sanction, if the sanction decision-maker is satisfied that more than one sanction is appropriate in the circumstances. For example, an employee may be re-assigned duties and have a fine imposed, or be reprimanded and re-assigned duties, or, as described above, an employee may have both their salary and their classification reduced.

Applying sanctions for multiple breaches

9.52. It is not necessary to impose a separate sanction for each breach of an element of the Code. However, where the breaches are unrelated—for example, a harassment incident and an unrelated theft—separate sanctions may be appropriate.

9.53. When an employee has breached several elements of the Code, it is necessary to consider the totality of the behaviour and its seriousness when considering sanctions to ensure the total effect is in proportion. The total effect should be neither too harsh nor too lenient, in relation to the seriousness of the breach or breaches when considered as a whole.

Consistency of sanctions

9.54. It is important to maintain a degree of consistency within an agency in the use of sanctions imposed for similar types of misconduct in similar circumstances. However, agencies should avoid a formula-driven approach. Differences in sanctions between cases within an agency should reflect the particular circumstances of both the misconduct and the employee.

9.55. To assist in maintaining consistency, agencies may find it helpful to:

• consider limiting the delegation to apply a sanction to a small number of people within the agency, and further limiting the number and the seniority of people with the delegation to impose more serious sanctions
• provide clear guidelines on the factors to be considered in deciding on sanctions
• have available specialist corporate and/or legal resources that can be consulted by sanction decision-makers
• establish a database of cases and sanctions and indicate that this can be consulted, having regard to privacy requirements, when deciding sanction.

9.56. The MPC publishes case studies of decisions made after reviewing agency breach determinations and sanction decisions. These case studies provide guidance on how the MPC may view a case. While helpful, the case studies should not be relied upon to make sanction decisions—a sanction decision must be made having regard to the circumstances of the particular matter.