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IntroductionThese Guidelines The Public Service Act 1999 (the Act) prescribes the standards of behaviour and conduct expected of all public service employees. These are expressed in the APS Code of Conduct (the Code), APS Values (the Values) and the APS Employment Principles (Employment Principles). ‘Misconduct’ is an umbrella term to describe behaviours or acts that may be in breach of the Code or are inconsistent with the Values or Employment Principles. Not all acts of misconduct are considered breaches of the Code. The purpose of these Guidelines is to assist ARC employees and managers to understand how the agency handles allegations of misconduct, how it determines whether there has been a breach of the Code and how it addresses a breach. The Public Service Amendment Act 2013 amended the Public Service Act 1999 to introduce new APS Values, the APS Employment Principles and to amend the APS Code of Conduct. Misconduct matters that were reported on or before 30 June 2013 will be managed under the previous Public Service Act 1999 and in accordance with the Agency’s section 15(3) Procedures that were in place at that time. Employee Responsibility As APS employees, all ARC staff are encouraged to be familiar with the Code of Conduct and the APS Values and are required to comply with them. This obligation should form part of every employees's performance agreement. . The APS code of conduct and youIn this section:
The Code of Conduct The APS Values, the Code and the Employment Principles, which are set out in the Public Service Act 1999 (the Act), prescribe the standards of behaviour and conduct expected of all employees. The Code of Conduct requires that an APS employee must:
Probationary employees must abide by the Code. In the first instance, allegations of misconduct by probationers should be addressed by managers/supervisors in the Probation Assessment Report. Former employees may still be investigated for suspected misconduct. Where an employee has transferred to another agency the details of the alleged misconduct are provided to the new employer. Where an employee has resigned from the agency an investigation can continue or commence, however sanctions cannot be imposed. APS Values and APS Employment PrinciplesThe APS Values and APS Employment Principles underpin the relationships and behaviours and articulate the culture and operating ethos of the Australian Public Service. Together the Values and Employment Principles shape the organisational culture of the APS and are core components to positive cultural change, building stewardship, high performance, and leadership—and fostering ‘one APS’. APS ValuesThe Values are easily remembered with the pneumonic ICARE:
APS Employment PrinciplesThe Employment Principles deal with employment and workplace relationships in the APS. The APS is a career-based public service that:
When does the Code of Conduct apply?An individual’s standard of conduct and their employment are connected in the following ways:
The Code of Conduct may apply whenever there is a connection between the employee’s behaviour and its effect on the workplace, other employees or agency clients and/or stakeholders, the reputation of the agency, the APS or the Commonwealth. This can occur in three (3) ways:
The Code requires employees to behave at all times in a way that upholds (a) the APS Values and APS Employment Principles and (b) the integrity and good reputation of the employee’s Agency and the APS. This does not mean APS employees are not entitled to a private life; however, APS employees should be mindful and aware that any conduct at any time that has the potential to bring the agency into disrepute or affect the employee’s position in the workplace, may be assessed and treated as suspected misconduct. The Code of Conduct and criminal offencesWhere an employee has been charged with, or found guilty of, committing a criminal offence, the Delegate will consider whether the facts and circumstances that give rise to the offence might also constitute a breach of the Code. For instance, where the criminal charge relates to behaviour that could have an impact on the person's ability to maintain honesty and integrity in connection with their APS employment (e.g. fraudulent use of documents to gain or seek to gain a benefit for the employee), or if the behaviour is likely to damage the good reputation of the APS (e.g. being charged with driving under the influence of alcohol and the employee is employed as a driver of the agency), it is appropriate to consider whether an investigation is warranted. The employee may be suspended until the decision of the court is known. Once the criminal charge has been heard, the Delegate may continue to have allegations investigated in order to determine the effect the misconduct may have on the employee’s status or the workplace more generally. The involvement of employees in criminal proceedings will not necessarily result in an investigation of whether there has been a breach of the Code. The evidence from any court proceedings may negate the need for the agency to undertake an investigation into whether or not a breach has occurred. However, if this is the case the employee concerned will be advised. Possible breaches of the Code of ConductExamples of unacceptable workplace behaviourBehaviour which would be considered unacceptable includes (but is not limited to) the following:
Falsifying your Attendance Record (Flex Sheet) All ARC Employees are required to maintain their own Attendance Records. Knowingly submitting an attendance record that is incorrect is a breach of the code of conduct. Scenario: A staff member takes and extended lunch break of 1 hour and 30 minutes and only records it as 30 minutes.They have claimed an additional hour’s work. Are they correct? Answer: No. The staff member should enter the actual break of 1 hour and 30 minutes. Scenario: A staff member records that they have completed work at 6.30pm but they actually stopped work at 5.30pm.They have claimed an additional hour’s work. Are they correct? Answer: No. The staff member should enter the actual time that they ceased work. Both of these scenarios are taking advantage of the flexible working arrangements of the ARC. If you are unsure of the time that you ceased work you can always ask for an access report to be provided. Misuse of the Fleet Vehicle The ARC pool vehicle is for government use only and not to be used for private purposes. Private use of the vehicle will be deemed a breach of the Code of Conduct. Drivers must be mindful that the pool vehicle is a government vehicle and should only be used for ARC business. Inappropriate internet usage The ARC acknowledges that, generally, activities carried on outside of your employment are your own affair. However, activities that impact on or affect your job performance, the performance of others, or ARC’s business interests or reputation or those of its customers or clients are a proper focus for ARC policy. Accordingly, in your personal use of social media you must follow these guidelines:
PrinciplesInformal A number of decisions are made in the process of handling allegations of misconduct, including:
The Agency Head can make these decisions under the following delegations:
The Director, People and Services is responsible for collating and coordinating information for the Delegate to make these decisions, and for managing investigations into allegations of misconduct, in keeping with the principles outlined in these Guidelines. Procedural fairness Procedural fairness embraces three key 'rules':
In practical terms, procedural fairness means that the person whose interest may be adversely affected by a decision will:
Wherever possible, the Delegate who determines that an employee has breached the Code of Conduct will not be the Delegate who determines what the sanction will be for that breach. This approach helps to ensure the facts determining the appropriate sanction are considered in an unbiased way. An employee’s privacy is observed, and the matter is treated confidentially All reports of suspected breaches of the Code will be dealt with in a private and confidential manner in keeping with the agency’s obligations under the Privacy Act 1988. Disclosures Only people with a genuine ‘need to know’ are made aware of a report of a suspected breach of the Code. These people include:
Misconduct figures are provided for the following reporting:
Record keepingRecords which relate to misconduct action are not placed on an employee’s personnel file. A separate file classified ‘Sensitive: Personal’ is maintained in a secure facility by the Director, People and Services or the Ethics Contact Officer. Access to these files is strictly on a ‘need-to-know’ basis. When a misconduct case is finalised, and the respondent is found to have breached the Code, the Director, People and Services or the Ethics Contact Officer will place a file note in a sealed envelope on the respondent’s Personnel file. The file note includes whether or not breaches of the Code of Conduct occurred, when the matter occurred, and the Delegate in the matter. Parties with a need for more information need to contact the Director, People and Services or the Ethics Contact Officer for access to the file. Records disposalIn accordance with the National Archives of Australia Administrative Functions Disposal Authority, the agency is required to destroy records relating to misconduct cases after a certain period of time, as follows:
Duty of care to all employeesManagers and supervisors have a duty to protect the health, safety and welfare of employees. If they suspect misconduct, or misconduct has been brought to their notice, a manager needs to take action, regardless of whether the complainant has requested that the matter remain confidential. All complaints are treated seriously and dealt with in a professional manner. Reporting MisconductIn this section:
Who can report misconduct? All employees are expected to report instances of suspected misconduct. As public servants we are required to act with integrity in all that we do, and this imposes on each of us an obligation to report suspected misconduct. In the first instance suspected misconduct may be discussed with or reported to any of the following people:
Reports of misconduct can be made verbally and/or in writing. Protections for reporting misconductThe Code of Conduct contains a general duty to treat everyone with respect and courtesy and without harassment. If you believe you are being punished as a result of reporting misconduct, you should advise the Ethics Contact Officer immediately Frivolous or vexatious claimsFrivolous claims are those that are unsustainable, such as minor matters that are not motivated by any serious concerns. Vexatious claims are those that are made as a means of obtaining an advantage for which the agency’s complaint handling procedures are not designed, such as a desire to annoy and harass another person. Employees should be mindful that frivolous and vexatious complaints will not be tolerated and may subject the complainant to allegations of misconduct. It is the Delegate’s role to make a decision about whether the allegations need to be investigated. Anonymous reportingThough it is possible to report suspected misconduct anonymously, employees are encouraged to come forward and report misconduct as this assists the Delegate to understand the allegations and/or decide whether to investigate them. Confidentiality will be provided as far as the law allows. For example, where it becomes necessary in the course of an investigation to release the name of the complainant or witnesses then advance notification will be given to the employees that may be affected. Typically, this occurs through the application of and adherence to procedural fairness principles, that is, that the respondent is entitled to review and respond to any information that the Delegate uses to make their decision in relation to the employee’s employment. Public Interest Disclosure Act 2013The PID Act builds on practices established to protect APS employees who ‘blow the whistle’ on suspected breaches of the APS Code of Conduct. The PID Act replaces previous whistleblowing legislation. The objects of the new PID Act are to:
Disclosures of suspected wrongdoing made prior to 15 January 2014 are not covered by the PID Act. See here for further information regarding the Public Interest Discloser Act. Protection from victimisationThe Public Service Act 1999 prohibits victimisation and discrimination of an employee who reports misconduct under the Public Interest Disclosure Act 2013. If you bring your concerns to the agency’s attention, a risk assessment will be undertaken to determine the appropriate measures of protection to be put in place. This may include temporary reassignment of duties, or movement to another location. Investigating MisconductIn this section:
Preliminary Enquiries On receiving allegations of misconduct, the Delegate firstly assesses the seriousness of the alleged misconduct and whether the allegations should be investigated. In less serious cases, the Delegate may decide that the misconduct is to be addressed informally. Informal options for addressing minor misconduct can include performance management, a warning, mediation, counselling or re-training. Where the allegations are more serious in nature or if conduct has not improved using informal solutions, the Delegate may decide that a formal investigation to determine whether there has been a breach of the APS Code of Conduct is required. This is called ‘formal misconduct action.’ Formal misconduct action As soon as the decision to commence formal misconduct action has been taken, the employee suspected of misconduct (known as ‘the respondent’) will be notified in writing. The respondent will be advised of:
If at any time the details of the suspected breach(es) change, including if additional documents or material are uncovered which the Delegate will rely upon in making a decision, the respondent will be informed and invited to make a further statement. Right to respond The respondent has three opportunities to provide input, or comment, on the investigation of the allegations against them. They may respond to the:
Suspension for possible misconductSuspension or temporary reassignment In some cases, the Delegate will decide that the employee suspected of misconduct should either be assigned to other duties or suspended from duty while the alleged misconduct is investigated. This decision is not a punishment or a prejudgement that a breach of the Code of Conduct has occurred. Each case is considered according to its individual circumstances, but relevant factors may include:
Normally the employee will be notified before a suspension/reassignment decision is taken and given an opportunity to comment on the proposed action. The Delegate will have regard to the circumstances of the employee and, in some cases, the circumstances of his/her family. Remuneration during suspension Suspension can be with or without remuneration. If it is without remuneration, it will not be for more than 30 days, unless there are exceptional circumstances. Exceptional circumstances will be determined on a case-by-case basis and may include:
Depending on the particular circumstances, the Delegate may decide that particular allowances can continue to be paid, however generally allowances are not paid during a period of suspension, even when the suspension is with remuneration. A suspended employee, who wishes to do so, should normally be permitted to access paid leave as an alternative to suspension (without remuneration). Requests to engage in outside employment during a period of suspension without pay will be considered on their merits. Any period of suspension with remuneration will ordinarily count as service for all purposes. Review of suspension The suspension decision will normally be reviewed at 30-day intervals. The nature and timing of such reviews will normally be a matter for the Delegate. The timing is primarily a matter for their judgement, but any reasonable requests for review, by the affected employee, could be acted upon. The Delegate will end a suspension when they no longer believe that the employee has, or may have, breached the Code, or the employee's suspension is not in the public or the agency's interest. Where a suspension is lifted as a result of a finding that there has been no breach of the Code, and where some or all of the period of suspension was without remuneration, that remuneration will be restored and paid as a lump sum. InvestigationsThe Delegate may engage an independent investigator to establish the facts concerning the allegations of misconduct. This usually involves interviews with the parties and witnesses, assessing any evidence, and providing an Investigation Report to the Delegate. The Delegate can refer the matter to the The Merit Protection Commissioner, at the request of the agency and with the agreement of the affected employee or former employee, is now able to determine, whether an APS employee or former employee has breached the APS Code of Conduct. Evidence may be collected from various sources. In some cases the investigation will be based on physical evidence, such as computer records, in others it may be based on evidence gathered through interviews with the parties and witnesses. Interviews Interviews are usually undertaken by the investigator, guided by the following principles:
Standard of proof The standard of proof for determining whether a breach of the Code has occurred is on the 'balance of probabilities'. This means that the Delegate must be satisfied that a breach is more probable than not. This is called the civil standard of proof (the criminal law standard of proof is 'beyond reasonable doubt'). The Delegate must be satisfied that the investigation process has gathered enough evidence to enable them to make a fair, balanced and conscientious decision. Where a decision has to be made between competing interests, all parties to the matter must have been heard and all arguments considered. The Delegate’s level of satisfaction with the evidence needs to increase with the seriousness or importance of the misconduct under consideration. In other words, for allegations of misconduct where the sanction is likely to be severe, the Delegate needs to see strong supporting information that a breach occurred before making that decision. Information during and after the investigation The agency strives to finalise a complaint as quickly as proper consideration of the matter allows. In normal circumstances, complainants will not be kept informed of progress of an investigation. However, there may be occasions where delay cannot be avoided, or where the handling of a case takes a new direction. In such circumstances, the Director, People and Services may keep all parties informed of progress if appropriate. In the normal course of events the respondent will be notified in writing of the outcome as soon as possible. If the Delegate determines there has not been a breach of the Code, the respondent will be notified in writing of the reasons for this conclusion. If the Delegate determines there has been a breach of the Code, the respondent will be informed in writing of:
The Delegate will invite the respondent to comment at the time a breach is determined and on the sanction that is being considered for the breach. Implications of misconductIn this section:
The sanctions Applying sanctions for breaches of the APS Code of Conduct is primarily aimed at protecting the integrity of the APS and maintaining public confidence in public administration rather than to punish an individual. Sanctions are intended to be proportionate to the nature of the breach, to provide a clear message to the relevant employee that their behaviour was not acceptable, to reduce or eliminate the likelihood of future similar behaviour, and to confirm that misconduct is not tolerated in our agency. Wherever possible, the decision on which sanction to apply for a breach of the Code of Conduct is made by a different Delegate to the one who made the decision that the employee had breached the Code. The possible sanctions for breaching the Code of Conduct are:
Termination of employmentTermination of employment is the most severe of sanctions. It is appropriate where:
The decision to apply a sanction The Delegate is responsible for imposing a sanction. The Delegate, in consultation with senior management group where necessary, may decide that no sanction will be imposed and may decide to issue a warning, or recommend counselling, performance management, or retraining, as other options. The Delegate will advise the respondent, in writing, of the proposed sanction and their reason/s for considering that sanction. In deciding what sanction, if any, should be applied, the Delegate takes into consideration:
The respondent will be given the opportunity to make a statement in response to the proposed sanction (usually 7 days). Mitigating factorsEvidence of mitigating factors (that is, factors that may explain or justify the misconduct) may persuade the Delegate to apply a lesser sanction than might otherwise have been imposed. Mitigating factors can include:
Applying multiple sanctions for one breachIt is possible for more than one sanction to be imposed on an employee found to have breached the Code. For example, an employee may be re-assigned duties and have a fine imposed. Applying sanctions for multiple breachesIt is usually appropriate to reflect the existence of multiple related breaches in a more severe sanction rather than separate sanctions for each breach. Where the breaches are unrelated, for example a harassment incident and an unrelated theft, separate sanctions may be appropriate. Conclusions and advice about the outcomesThe agency appreciates that employees who have made a complaint and/or have provided information to an investigation may have an interest in knowing that the agency has addressed the 'wrongs'. Where possible, the agency will advise the complainant when the investigation has been finalised. However, when considering what information to provide to complainants, the agency is obliged to consider:
Personal information about the respondent, including details of any sanction imposed, will not be provided to complainants in line with the agency’s obligation under the Privacy Act 1988 to protect personal information about individual employees. The complainant and witnesses do not receive a copy of the Investigation Report. Access to documentsThe details of a misconduct investigation are not part of the Personnel file of the complainant, or any other party involved in the investigation of a complaint. If a breach of the Code of Conduct is established, the details of the breach, sanction and decision maker are placed in a sealed envelope on the Personnel file of the respondent. This information may need to be referred to in security assessment checks, pre-employment checks and salary or service audits, for example. Only the employee, the Director, People and Services and the employer (if the employee moves to another agency) has the right to access these details. Information concerning the agency’s investigation of a complaint is kept on a confidential Investigation file held securely by the Director, People and Services, access to which is via a formal Freedom of Information (FOI) request. Right of ReviewAll APS employees are entitled to have an action or decision (by their employer) that relates to their employment reviewed by someone who is independent. Some decisions are reviewed by another officer of the agency, while other decisions are reviewed by the Merit Protection Commissioner. In general, if the review concerns:
Not all actions are reviewable; more detail is available in the agency’s Review of Action Guidelines (see People and Services Section on the Intranet. When is a Review of Actions not available to an employee?
A decision that the Code of Conduct has been breached, and that a sanction will be imposed, will not be put on hold because the employee who will be affected by this decision has requested an independent review of this decision. Time limitsThe Public Service Regulations 1999 has set time limits on making applications for both primary and secondary review.
Other ReferencesThis guideline complements and expands on the agency’s existing material on misconduct matters, including: ARC Links The Australian Public Service Commission (APSC) also provides information and advice about the Code of Conduct and how it applies in the workplace. The following resources are available at the APSC Website. Commonwealth Ombudsman - Public Interest Disclosure Sources of SupportSituations involving misconduct and conflict at work can be distressing. If you are affected, you are encouraged to draw on the confidential counselling services of the Website: www.eapdirect.com.au Phone: 1300 360 364 Harassment Contact Officers (HCOs)A network of employees across the agency who have been trained to provide information and support in regard to workplace harassment. Their contact details are available under People and Services/ Bullying and Harassment Free Workplace/Discrimination and Harassment Free Workplace on the Intranet. The Australian Public Service Commission (APSC) provides an Ethics Advisory Service which is available to all APS employees who want advice on ethical issues in the workplace and on how to make sound decisions around these issues. Enquiries: Monday – Friday from 9.00 am to 5.00 pm AEST Phone: 02 6202 3737 Email: Additional InformationQuestions about these Guidelines and all matters concerning the agency’s handling of misconduct matters can be addressed to the Human Resources Team email at or by phone on (02) 6287 6632. |