Handling Misconduct
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.
29
Handling Misconduct
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.
30
Handling Misconduct
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.
32
Handling Misconduct
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
33
Handling 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.
35
Handling Misconduct
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
45
Handling Misconduct
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.
47
Handling Misconduct
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.
48
Handling Misconduct
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.
51
Handling Misconduct
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.
52
Handling Misconduct
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
53
Handling Misconduct
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
54
Handling Misconduct
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.
55
Handling Misconduct
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.
56
Handling Misconduct
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
58
Handling Misconduct
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.
59
Handling Misconduct
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
60
Handling Misconduct
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.
61
Handling Misconduct
If the suspension is to be without remuneration, the period without remuneration
is to be:
a) not more than 30 days, or
b) 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.
62
Handling Misconduct
Suspension must end immediately if the agency head no longer believes, on
reasonable grounds, that:
a) the employee has, or may have, breached the Code, or
b) 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).
63
Handling Misconduct
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
64
Handling Misconduct
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.
66
Handling Misconduct
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.
67
Handling Misconduct
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?
68
Handling Misconduct
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
69
Handling Misconduct
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
70
Handling Misconduct
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.
71
Handling Misconduct
8.1.
Undertaking a misconduct investigation includes gathering and assessing evidence,
and, in many cases, preparing an investigation report, to inform a breach
determination that is sound and defensible.
8.2.
It is recommended that the breach decision-maker not be informed that the person
under investigation has previous findings of breaches of the Code, if that is the case.
Where this is not possible, the decision-maker should not take previous findings
into consideration. This allows the decision-maker to make their determination
solely on the evidence relating to the matter under investigation. However, it may
be reasonable for a decision-maker to take into account previous warnings,
directions, or other management action that has been taken in relation to the same
matter. The relevance of prior misconduct should be considered in making a
sanction decision.
Gathering evidence
8.3.
Evidence can be collected from a range of sources. These can include interviews
with witnesses, electronic records (for example, system logs or building access), or
written statements. In some cases, physical evidence may be sufficient to establish
the facts—for example, in cases involving suspected improper access to personal
information, or improper use of email or internet, the investigation is likely to be
founded on records of computer use. In other cases, witness statements or other
evidence will need to be collected and considered.
8.4.
Where the person under investigation suggests there may be additional evidence
that could corroborate their version of events, or otherwise disprove the allegations
against them, this evidence should be gathered where practicable. Such requests
should be evaluated in light of the relevance of the evidence and the requirements
of procedural fairness.
Conducting interviews
8.5.
The purpose of an interview is to gather and test evidence to assist in establishing
factual matters. An investigator or decision-maker should consider the following
good practice in conducting interviews:
Providing the interviewee with sufficient notice to allow for adequate
preparation
Where appropriate, advising the interviewee that they may be
accompanied by a support person (see ‘Support roles’ for more
information)
Considering whether it would be appropriate to make available to the
interviewee, before the interview, any documents that will be discussed at
the interview
73
Handling Misconduct
Preparing a set of questions
Questions should be framed in clear and neutral terms, and
witnesses should not be prompted, even inadvertently, to confirm a
particular set of facts or version of events
Advising interviewees that personal information relating to them, or any
other person, and any evidence they provide, may be disclosed to others,
including the person under investigation, where necessary and appropriate
Ensuring, where practicable, that the interview is conducted in a private
location free from interruption. This may be a location outside the
workplace
Wherever possible, seeking corroborating evidence from the interviewee of
any claims they make
Advising the interviewee that a record of the discussion will be prepared
and will be provided to them
The objective is to have jointly agreed records of interviews. If this
cannot be achieved, it is good practice to document the areas of
disagreement
Informing the interviewee of the arrangements for confirming the accuracy
of the record of the interview, recording any disagreements, and setting a
timeframe for the interviewee to respond
Deciding before the interview whether it is desirable for it to be audio-
recorded, and, if so, establishing the interviewee’s consent to the recording.
It is usually appropriate to make a copy of the recording available to the
interviewee
Ensuring notes of the interview are accurate and are recorded in the
interviewee’s own words. Where a written record of interview is to be
prepared, it may be convenient to use a note-taker
After the interview, considering whether evidence provided by the
interviewee needs to be checked, either with the interviewee or against
other sources of evidence.
Interviewing the person under investigation
8.6.
Investigators are often required to interview the person under investigation for the
purpose of establishing facts. An interview in these circumstances is not an avenue
for procedural fairness, and the investigator may need to explain this to the person,
and assure them that they will be given other opportunities to respond to the case
against them before a decision is made.
74
Handling Misconduct
Is any evidence missing? Is there enough credible, relevant, and significant
(i.e. logically probative) evidence to support findings of fact on which a
breach determination can be made?
Assessing and evaluating evidence
8.13.
When making a judgement about the reliability of the evidence, investigators and
decision-makers should consider the following:
Primary sources of evidence are preferable to secondary sources. For
example, hearsay evidence is of less value than a first-hand account.
First-hand evidence of an event is what a witness to the event relates,
while hearsay evidence is what someone says they were told about an
event by another person who witnessed it.
Test disputed facts, or seek corroboration from other witnesses or
evidence, where possible.
Evidence is more likely to be reliable if it can be confirmed or verified
from another independent source.
Consider the credibility of witnesses, having regard to, for example,
inconsistencies in evidence, honesty, or the possibility of collaboration or
improper purpose.
Be mindful that conflicting versions of an event do not necessarily mean
someone is lying. It is possible for different people to perceive or
remember events differently. Consider what the balance of evidence
suggests is the truth of the matter—for example, whether someone’s
account is consistent with other evidence.
Be mindful of the impact of unconscious bias in assessing the credibility
of witnesses. For example, a witness not making eye contact is not in
itself a reason to conclude they are evasive or untruthful. More
information about unconscious bias is in section 4.2.2.
A record of an event made contemporaneously is generally preferable to a
record made days or weeks later.
For example, a diary note made close to the time of a conversation is
likely to be more reliable than someone trying to recall the details of
the conversation several months after it occurred.
An opinion generally has greater weight if it is given by someone with
expertise on the matter.
For example, a medical practitioner’s diagnosis of a person’s state of
health will be more reliable than a lay person’s opinion. Expert evidence
may be evaluated by, for example, looking at the expert’s area of
76
Handling Misconduct
expertise and its relevance to the opinion or evidence they have
provided. However, an investigator should be wary of relying on their
own non-expert opinion in a matter that requires expert judgement.
Standard of proof
8.14.
The standard of proof applicable to findings that the Code has been breached,
including the findings of fact that support the breach determination, is the civil
standard. That is, findings are based on the conclusion that it is more likely than
not, having regard to credible evidence, that the person under investigation has
done what they were alleged to have done. This is referred to as ‘the balance of
probabilities’.
Procedural fairness—investigation and
determination’
8.15.
Subject to agency s.15(3) procedures, the investigator should provide the person
under investigation with the relevant, credible, and significant evidence collected
during the investigation and allow them to respond, comment, or correct the
record. This may take the form of a summary of the substance of the evidence or
witness statements, rather than the full documentation.
The hearing rule does not require all investigation material relevant to the
allegations to be provided, but the person under investigation must be
given sufficient details of the case against them to be able to respond
properly.
Credible, relevant, and significant material may include adverse material
that the decision-maker does not propose to rely on in making a particular
finding or the decision on breach. Depending on the circumstances, it may
be necessary for the person under investigation to be given an opportunity
to comment on this.
If new or conflicting evidence comes to light that is relevant, credible, and
significant, reasonable steps must be taken to provide the person under
investigation with a reasonable opportunity to respond to that evidence
before a decision on breach is made.
Procedural fairness does not always require that adverse material be put in
writing. Subject to any requirement in agency s.15(3) procedures, it may be
appropriate in some cases to put adverse material to the person at an
interview.
8.16.
The investigator should also ensure that the person under investigation has a
reasonable opportunity to state their case, including any extenuating
circumstances.
77
Handling Misconduct
The length of time given to respond to adverse material may depend on the
complexity of the allegations and the evidence, and the particular
circumstances of the person under investigation, having regard to the
requirement in the Commissioner’s Directions to conduct the
determination process with as much expedition as a proper consideration
of the matter allows.
The person under investigation should be informed, consistent with the
agency’s s.15(3) procedures, of how long they have to respond and whether
the response can be oral or in writing. What can be considered a
‘reasonable opportunity’ to respond depends on the relevant
circumstances, including the extent and seriousness of the alleged
misconduct and the capacity of the employee to respond. Whether the
response is oral or in writing may depend on the complexity of the matters
the employee wishes to raise, or the capacity of the employee to provide a
written statement.
Procedural fairness requires the person under investigation to be given a
reasonable opportunity, not a perfect opportunity, to put their case. This is
determined by an objective standard—that is, what a reasonable person
would believe was a reasonable opportunity given the circumstances.
Declining to respond to allegations of misconduct cannot be assumed to be
evidence that the alleged misconduct occurred.
8.17.
The breach decision-maker may advise the person under investigation of their
preliminary views about the alleged breach, and give them an opportunity to
respond. This might be in the form of a draft decision or report if the decision-
maker deems this appropriate in the circumstances, or if it is a requirement of an
agency’s s.15(3) procedures.
Investigation report
8.18.
An investigation report is an explanation of how the available evidence leads to a
particular conclusion about what happened. It is not enough to set out only the
allegations, evidence, and conclusion—the report also needs to articulate the
analytical process and explain how the evidence leads to the specific conclusion
that has been reached.
78
Handling Misconduct
8.19.
A good quality investigation report should:
set out clearly the nature of the alleged misconduct—well-drafted
allegations will assist with this
outline the factual matters that need to be established to determine
whether the person under investigation did what was alleged. In order to
do this, the investigation report may need to establish a clear chronology of
events
set out the steps taken to collect evidence and information
present the evidence in a balanced way, including both evidence that
supports and challenges the allegations
acknowledge and consider the response of the person under investigation
to the allegations, and their response to any new or conflicting evidence
uncovered in the course of the investigation
if there is a conflict in the evidence, explain why one set of evidence is
preferred over another
outline the conclusions that are able to be reached on the available
evidence—these need to flow logically from the evidence
include reasons why the action or behaviour that is found on the evidence
could or could not be determined to be a breach of an element or elements
of the Code.
Making a breach determination
8.20.
The process of determining a breach of the Code requires the decision-maker to
decide, after weighing the evidence, whether or not the person under investigation
has, on the balance of probabilities, done what they were alleged to have done, and
then to decide, as a consequence, whether or not the person has breached a
particular element or elements of the Code.
8.21.
When a different person has undertaken the investigation, the breach decision-
maker remains responsible for the decision. The decision-maker needs, separately
and independently, to consider the evidence where an investigator has made a
recommendation about whether a breach of the Code has occurred. The decision-
maker must then reach their own conclusions, both on the findings of fact and
about breach.
79
Handling Misconduct
8.22.
Where a breach decision-maker has concerns about the recommendations made by
an investigator, or about the investigative process, the decision-maker may act on
those concerns and take additional steps to correct procedural flaws or satisfy
themselves on particular matters. This might include writing to the person under
investigation and giving them an opportunity to comment on the decision-maker’s
preliminary view about findings of fact or breaches of the Code before a decision is
made.
8.23.
In determining which elements of the Code have been breached, it is important to
focus on the elements most relevant to the behaviour. A targeted approach is
consistent with the premise that misconduct action in the APS has a corrective
function. It is easier to explain to a person found to have breached the Code that
their conduct was inappropriate if the elements of the Code are relevant to the
misconduct. The person is also more likely to change their behaviour in the future if
they have a clear understanding of the link between their conduct and the breach.
Where more than one element of the Code has been breached, each element will
need to be considered separately in the final decision.
8.24.
It may become clear to the breach decision-maker in the course of the investigation
that no breach has occurred, or that there is insufficient evidence on which to base
a finding that a breach has occurred. In some cases, this can be because the breach
decision-maker forms the view that the person under investigation has done what
was alleged but has made an honest and reasonable mistake due to, for example,
systemic issues, such as a lack of adequate training or problems with technology,
leading to a number of similar mistakes by colleagues, or that the action was taken
at the direction of a manager.
8.25.
If evidence does not support a finding of a breach, the decision-maker can either
terminate the decision-making process, or, alternatively, finalise the decision-
making-process with a determination that the employee has not breached the
Code. The person under investigation should be advised of the outcome.
8.26.
Generally, there is no practical difference between an investigation that is
discontinued without a finding of breach and one that determines no breach has
occurred. However, in deciding how to proceed, a decision-maker should have
regard to all the circumstances, including whether the time and resource costs of
finalising the investigation are justified, and the impact on the person under
investigation of discontinuing or of finalising the investigation.
80
Handling Misconduct
Preparing a record of the determination
8.27.
Under s.63 of the Commissioner’s Directions, a written record must be made of the
breach determination. Agency s.15(3) procedures may prescribe the form of such a
written record, though they are not required to do so.
8.28.
As a matter of good practice, a record of a breach determination should generally
include:
a summary of the evidence considered by the decision-maker
where the decision-maker also considered a recommendation from an
investigator, the decision-maker’s response to the recommendation,
including reasons for accepting or not accepting the investigator’s
recommendation. The investigator’s report could be attached to avoid the
need to reproduce the detail of the report in the decision record
findings of fact about what the person under investigation has done or not
done. The findings need to be as specific as possible, and, wherever
possible, linked to specific events
a decision as to whether what happened amounts to misconduct, and, if so,
which element(s) of the Code were breached
the reasons for reaching these conclusions.
Advising the person under investigation of the breach
determination
8.29.
Under s.60 of the Commissioner’s Directions, reasonable steps must be taken to
inform an employee found to have breached the Code of the breach determination,
the sanctions(s) under consideration, and the factors under consideration in
determining the sanction, before any sanction can be imposed. It is good practice to
provide this information in writing.
8.30.
Where a former employee is found to have breached the Code, agencies should
take reasonable steps to inform them in writing of the breach determination and
their review rights.
81
Handling Misconduct
8.31.
As a matter of good practice, a letter to the person under investigation should
generally also:
enclose a copy of the breach determination record, and, if appropriate, the
investigation report
for an employee, provide information about the process for making a
sanction decision
In some cases it may be appropriate at this stage to advise the
employee of the sanctions being considered, and the factors under
consideration in determining a sanction
notify the employee or former employee of the right to seek review of the
determination under s.33 of the PS Act
Both employees and former employees found to have breached the
Code have the right to seek review by the MPC of the determination.
Applying for a review will not operate to stay the finding of breach or, in the
case of a current employee, consideration of any sanction.
82
